THE FEDERAL BANK LIMITED Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a Bank, who had approached this Court seeking the following relief:

(2.) The facts as disclosed would show that the petitioner Bank had taken proceedings against the 5th respondent under the SARFAESI Act (hereinafter referred to as 'the Act'). The secured asset, having an extent of 12.54 Ares of land in Survey No.1/1 in Kalkoonthal Village, Udumbanchola Taluk, was taken possession by the Advocate Commissioner pursuant to a direction issued by the Chief Judicial Magistrate Court under Section 14 of the Act and possession was handed over to the Bank. Ext.P1 is the order passed by the Chief Judicial Magistrate on 30/04/2015 and Ext.P2 is the report of the Advocate Commissioner dated 07/10/2015. Pursuant to the report of the Advocate Commissioner, Chief Judicial Magistrate had closed the application. Petitioner later found that the 5th respondent had trespassed into the property. Petitioner therefore preferred a complaint, Ext.P3 dated 30/05/2016 before the Station House Officer, Kattappana Police Station and sought for evicting the accused/5th respondent. Ext.P4 is the First Information Report. According to the petitioner, thereafter, the police had not taken any steps in the matter and hence the petitioner has approached this Court seeking the aforesaid reliefs.

(3.) Counter affidavit has been filed by the 5th respondent inter alia contending that the writ petition is not maintainable. It is stated that the petitioner is not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India, in so far as the Act provides for a complete machinery for adjudication of various disputes, and nothing prevents the petitioner from approaching the Chief Judicial Magistrate again under Section 14 of the Act, if at all he has a contention that the 5th respondent had trespassed into the property. That apart, it is contended that the property is an agricultural property, which is liable to be exempted from the provisions of the Act and this aspect of the matter has not been considered. Though the petitioner has filed an application S.A.No.226/2016 before the Debts Recovery Tribunal (hereinafter referred to as 'the Tribunal'), the same had been rejected. It is submitted by the learned counsel that so far, the order had not been served on the 5th respondent, and hence further steps could not be taken in the matter. Learned counsel submits that the photographs produced in the case would clearly disclose that the property is agricultural in nature and therefore, taking possession of the property was without jurisdiction.