The petitioner in CMP.No.125/2014 on the file of the Chief Judicial Magistrate Court, Ernakulam is the revision petitioner herein. The petitioner is a borrower and he had obtained a loan from the respondent, Dewan Housing Finance Corporation Ltd, Ernakulam Branch by mortgaging his property. Thereafter he committed default in payment of the amount. The bank issued notice dated 5.6.2013 requiring the petitioner to close the transaction. Since it was not complied with, the respondent sent notice dated 5.11.2013 under section 13(2) of the SARFAESI Act with a direction to pay the amount of Rs.52,87,922/- within 60 days from the date of notice. According to the petitioner, now the 1st respondent is trying to take possession of the property without complying the provisions of law. The petitioner is ready to pay the defaulted instalments for regularising the loan. According to the petitioner, there is every chance of filing a petition under Section 14 of the SARFAESI Act and by misleading the court, the respondent is liable to obtain a favourable order from the court. It is the settled legal position that it is just and fair to issue notice to the borrower, property owner as well as to the tenant, if any, before appointing a commissioner for taking possession of the secured asset. So he filed a petition requesting to issue notice in the application expected to be filed by the creditor under Section 14 of the SARFAESI Act. 2. The respondent appeared and opposed the application.
3. The learned Chief Judicial Magistrate by the impugned order dismissed the application, against which the present revision has been filed. The request of the petitioner in the petition was to issue notice to the borrower in the application expected to be filed by the creditor seeking relief under Section 14 of the SARFAESI Act.
4. It is true that in expect issuing notice under 13(2) of the SARFAESI Act, there is no provision to issue notice in the application filed by the creditor seeking the assistance of court for taking possession under section 14 of the SARFAESI Act. It is true that in the decision reported in Housing Development Finance Corporation v. Government of Kerala (2013 (3) KLT 366), this Court has observed that if the court feels that a notice has to be issued to the borrower before appointing a commission to hand over possession, the court may issue notice. In that decision it has been observed that power of the court for issuing notice before handing over possession is not barred under the Act especially in view of the amendments made to the provision. Further the petitioner cannot as of right insist the court to issue notice in an anticipated action by the creditor under section 14 of the SARFAESI Act. So, the court below was perfectly justified in dismissing the application stating that at that stage the petitioner has no right to ask for such a relief. Further if the petitioner wants to pay off the amount, he can seek remedy under section 13(8) of the Act. There is no illegality committed by the court below in passing the order and the revision lacks merit and the same is liable to be dismissed.
In the result, the revision is dismissed.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge