The Housing Development Finance vs The District Collector on 13 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 6697 of 2007(V)


1. THE HOUSING DEVELOPMENT FINANCE
                      ...  Petitioner

                        Vs



1. THE DISTRICT COLLECTOR,
                       ...       Respondent

2. THE ADDITIONAL DISTRICT MAGISTRATE,

3. THE TAHASILDAR, KOZHIKODE TALUK,

4. THE VILLAGE OFFICER,

5. ABDUL RAHMAN.P., PATTERKANDY HOUSE,

6. ABDUL RAHMAN.P., N.B.R.HOUSE,

7. ABDUL KADER.P., PATTERKANDY HOUSE,

                For Petitioner  :SRI.KKM.SHERIF

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :13/08/2008

 O R D E R

J.B. Koshy & P.N.Ravindran, JJ.

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W.P.(C) Nos.6697 and 28106 of 2007
and 6349 of 2008

—————————————
Dated this the 13th day of August, 2008

Judgment

Koshy,J.

In these three writ petitions, authorised officer of the

financial institutions approached the District Collector under section

14 of the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (in short `the

Securitisation Act’). Section 13 (4) (a) of the Act reads as follows:

“(4) In case the borrower fails to discharge
his disability in full within the period specified in
sub-section (2), the secured creditor may take
recourse to one or more of the following
measures to recover his secured debt, namely:

“(a) take possession of the secured
assets of the borrower including the right
to transfer by way of lease, assignment or
sale for realizing the secured asset.”

Under section 14, if an application is made before it, District

Magistrate is bound to give assistance to the secured creditor in

taking possession of the secured asset. Section 14 (1) and (2) read

as follows:

“14. Chief Metropolitan Magistrate or
District Magistrate to assist secured creditor in
taking possession of secured asset:- (1) Where
the possession of any secured asset is required

W.P.(C)Nos.6697 & 28106/2007 2
6349/2008

to be taken by the secured creditor or if any of
the secured assets is required to be sold or
transferred by the secured creditor under the
provisions of this Act, the secured creditor may,
for the purpose of taking possession or control
of any such secured assets, request, in writing,
the Chief Metropolitan Magistrate or the District
Magistrate within whose jurisdiction any such
secured asset or other documents relating
thereto may be situated or found, to take
possession thereof, and the Chief Metropolitan
Magistrate or as the case may be, the District
Magistrate shall, on such request being made to
him —

(a) take possession of such asset and
documents relating thereto; and

(b) forward such asset and
documents to the secured creditor.

(2) For the purpose of securing
compliance with the provisions of sub-section
(1), the Chief Metropolitan Magistrate or the
District Magistrate may take or cause to be
taken such steps and use, or cause to be used,
such force, as may, in his opinion, be
necessary.”

2. Contention of the petitioner in W.P.(C) No.6697 of

2007 is that he filed Ext.P2 application, but, no action is being

taken. In W.P.(C) Nos.28106 of 2007 and 6349 of 2008,

applications were filed before the Collector. The Collector simply

sent the matter to the Commissioner of Police and Tahsildar for

necessary action. The Tahsildar, thereafter, forwarded the same to

the Village Officer. Section 14 contains provision to enable the

W.P.(C)Nos.6697 & 28106/2007 3
6349/2008

secured creditor to take the assistance of District Magistrate in

taking possession of the secured asset. When the authorised officer

of the secured creditor makes an application for assistance for

taking possession, he is bound to take possession of such asset and

documents relating thereto and forward such asset and documents

to the secured creditor. Section 14 (2) of the Act, specifically

authorises him to take such steps or force necessary for the

purpose of compliance with the provisions of section (1) and mere

forwarding of the application to the Police or Tahsildar is not

enough. Therefore, these writ petitions are disposed of directing the

District Collector to dispose of the application to take action as

provided under section 14 of the Securitisation Act as expeditiously

as possible, according to law. While taking possession, he can get

the assistance of the Police or any other step.

J.B.Koshy
Judge

P.N.Ravindran
Judge

vaa

W.P.(C)Nos.6697 & 28106/2007 4
6349/2008

J.B. KOSHY
AND
P.N.RAVINDRAN,JJ.

————————————-
W.P.(C) Nos.6697 and 28106
of 2007 and 6349 of 2008

————————————-

Judgment

Dated: 13th August, 2008