IN THE COURT OF THE

CHIEF JUDICIAL MAGISTRATE,

BENGALURU RURAL DISTRICT, BENGALURU.

Present:- SRI.Padma Prasad.B.A (Law) L.L.B,

CJM, Bengaluru Rural District, Bengaluru.

Dated this the 6th Day of April, 2021.

Crl.Misc.No.232/2020
Petitioner : Anand Rathi Global Finance Limited,
Having its registered office at
Express Zone, “A” Wing, 10th Floor,
Goregaon (East), Mumbai – 460 063
and having its branch office at
4th Floor, Bikkaner Pinnacle, No.1
Rhenius Street, Off Richmond Road,
Bengaluru – 560 025
through its Authorised Officer
Mr.Shrinivas Hunsikatti.

(By Sri.K.V.Lokesh, Advocate for petitioner)

-Vs-
Respondents : 1.Vmaks Builders Private Limited,
Registered Office:
Office No.1, 16th B Cross Road,
3rd Block, Jayanagar, East,
Bengaluru – 560 011.

2.Mr.Ramaswamy Mahesh Babu,

Registered Office:
Office No.1, 16th B Cross Road,
3rd Block, Jayanagar, East,
 2 Crl.Misc.No.232/2020

Bengaluru – 560 011.

3.Mr.Vasudeva Ramaswamy,
Director,
Registered Office:
Office No.1, 16th B Cross Road,
3rd Block, Jayanagar, East,
Bengaluru – 560 011.

4.Mr.Krishnappa Ankaiah,
Director,
Registered Office:
Office No.1, 16th B Cross Road,
3rd Block, Jayanagar, East,
Bengaluru – 560 011.

(By Sri.A.S.nanjundappa, Advocate for

Respondents)
========================
O R D E R

The petitioner has filed the present petition under

section 14 of the Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest

Act, 2002[ hereinafter referred to as “ the SARFAESI

Act “], through its authorized officer, seeking an order to

enable it to take physical possession of the property as

described in the schedule [ hereinafter referred to as “ the

SECURED Asset “].

 3 Crl.Misc.No.232/2020

2. The authorized officer of the petitioner bank

has also sworn to an affidavits and the same has been filed

alongwith the main petition.

3. The respondent filed preliminary objection as well

as main objection mainly contending that the petitioner has

not complied S.26(D) of SARFAESI Act. Accordingly,

prayed for dismissal of petition.

4. As laid down by the Hon’ble High Court of

Karnataka in the case between L&T Housing Finance Ltd.,

and Sri.Vasukrishnamurthy (W.P.NO.35696/2015 (GM-

RES), decided on 03.09.2015), “The borrower / mortgager

or any other person has no locus to participate / object

/ beheard at the time of the passing of the order or

any other stage including the execution or implementation

of the order”. Therefore, issuance of notice of this

petition to the respondents is dispensed with.

5. On the basis of above point for consideration is

that “ Whether the petitioner is entitled for the physical

possession of the schedule property as prayed “?

 4 Crl.Misc.No.232/2020

6. Heard arguments and perused the materials on

records. On that basis my finding on the above point is in

Affirmative for the following :-

R E A S O N S
7. Point : Section.14 of the Act discloses that only a

Chief Metropolitan Magistrate or a District Magistrate,

can entertain a petition filed under the said section. But, in

Civil Appeal No.6295/2015, in the case of “The Authorized

Officer, Indian Bank –Vs- D.Visalakshi and another “, it was

held by the Hon’ble Apex Court, that Chief Judicial

Magistrate is equally competent to deal with an application

moved by the secured creditor under section 14 of the

SARFAESI Act 2002. Hence, the petition is

maintainable before this court.

8. The main objection raised by the respondent is

that the petitioner have not complied the provisions of

S.26(D) of SARFAESI Act, but that cannot be accepted

as the petitioner has produced Cersai certificate. The

respondent also claims that the petitioner has no authority

to issue the notice and proper demand notice has not been

issued. Even the said contention cannot be accepted as the

petitioner has already caused clear 60 days notice to the

 5 Crl.Misc.No.232/2020

respondent. If the provision of S.14 of the SARFAESI

Act is accepted, the respondent immediately after the

receipt of demand notice issued as per S.13 of SARFAESI

Act shall raise all objections and the petitioner is

expected to give suitable reply to such notice. if the

respondent fails to give any reply or objection to the

demand notice issued under S.13(2) of SARFAESI Act,

subsequently the respondent is debarred from raising

objections. The authorized officer also filed detailed

affidavit in support of the petition. As such absolutely

there is no material on record to accept the objections of

the respondent.

9. As could be seen from the documents placed

before the court, the schedule properties/secured assets

are situated at Kammasandra Village, Attibele Hobli, Anekal

Taluk, Bengaluru, that situates within the territorial

jurisdiction of this court.

10. As per the petition averments and also the

averments made in the affidavit accompanying the petition,

the petitioner has sanctioned a loan of Rs.15 crores to the

respondents against the security of the schedule property.

As per the terms of the loan papers, the respondents have

 6 Crl.Misc.No.232/2020

to repay the said loan amount with agreed rate of interest

together with other applicable charges in regular

installments. After availing the said loan the respondents

have failed to keep up their promise of prompt repayment,

inspite of repeated requests and demands made by the

officials of the petitioner and at present, there is an

outstanding balance of Rs.7,32,14,540/- as on 31.12.2019 in

the loan accounts in question; and hence, the said loan

accounts have classified as non-performing assets(NPA).

Therefore, the petitioner being a secured creditor, is, in

law, entitled to obtain the physical possession of the

schedule property/secured asset, in respect of which the

respondents, while borrowing the loan in question, have

created a security interest in its favour.

11. The contents of the documents produced by the

petitioner corroborate the contention of the petitioner as

well as the contents of the sworn affidavit of its

authorized officer that it is the secured creditor, as the

respondents have created a security interest in respect of

the schedule property/ secured asset, while borrowing the

loan in question which has now classified as non-performing

asset due to the default committed by the respondents in

 7 Crl.Misc.No.232/2020

making regular repayment as agreed and its claim against

the respondents is well within the period of limitation. The

records also reveal that the petitioner has issued a demand

notice dated 20.01.2020 as contemplated U/s.13(2) of the

SARFAESI Act and despite receipt of the said notice,

the respondents have failed either to comply with the just

and legal demands made therein, within 60 days or to issue

suitable reply by raising any tenable objections.

12. The copy of CERSAI certificate produced by the

petitioner reveal that the security interest created in its

favour by the respondents, has been registered with the

Central Registry of Securitization Asset Reconstruction and

Security Interest of India, New Delhi. So, the petitioner

has complied the mandatory requirement of the provision of

S.26D of the SARFAESI Act, as amended by Act 44 of

2016 and thereby entitled to exercise the rights of

enforcement of securities under Chapter – III of the said

Act, which contains S.14 too.

13. The affidavit sworn by the authorized officer of

the petitioner is inconsonance with the requirements of the

first proviso to S.14(1) of the SARFAESI Act. By

considering all these aspects, there is a need to extend the

 8 Crl.Misc.No.232/2020

assistance of this court to obtain physical possession of the

secured asset by the petitioner company as prayed.

14. It is the settled principles of law that, for the

sake of convenience, to do the ministerial work, courts are

empowered to appoint advocate commissioner. Therefore,

this court of the considered opinion that it is required to

take possession of the secured assets by appointing an

advocate as court commissioner. Therefore, this court is

of the humble opinion that the petitioner company, being

the secured creditor, is entitled to take physical possession

of the secured asset as contemplated under section 14 of

the SARFAESI Act, 2016. In view of these facts

objections of the respondents is hereby overruled.

Accordingly the above point is answered in the affirmative.

In result following :-

O R D E R

The present petition filed under

section 14 of the SARFAESI Act is

hereby allowed.
[[

The petitioner is entitled to take

physical possession of the secured asset

 9 Crl.Misc.No.232/2020

which is described as petition schedule

properties.

Smt.Rashmi.S, is appointed as

court commissioner to take physical

possession of the secured asset and to

deliver the same to the petitioner.

The commissioner’s fee is

tentatively fixed at Rs.5,000/- and the

petitioner bank is directed to pay the

same to the court commissioner.

It is also ordered that the

jurisdictional police shall assist the court

commissioner and the petitioner bank to

take physical possession of the secured

asset by drawing mahajar and also by

taking photographs or by making

videography at the cost of petitioner

bank.

On depositing or payment of

commissioners' fees, the office is

directed to issue commission warrant in

the name of court commissioner, who is

 10 Crl.Misc.No.232/2020

hereby directed to submit the compliance

report in the court office without undue

delay.

Return the original documents to the

petitioner on proper identification.

(Dictated to the stenographer directly on computer,

corrected and signed by me and then pronounced in the open
court on this 6th day of April 2021)

(PADMA PRASAD)
Chief Judicial Magistrate.
Bangalore Rural District, Bengaluru.