2012 (4) TMI 142

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....fter referred to as 'SARFAESI Act').Admittedly, the movable goods are belonging to the petitioner, who is a tenant in the property, belonging to the second respondent. 2. It is also not in dispute that the above said movables mentioned in the impugned notification are not the subject matter of security for the borrowal from the bank and the petitioner has not stood as a guarantor in respect of the amount stated to have been borrowed from the bank by one Samsen Papli, from whom the second respondent has purchased the property for repayment under the SARFAESI Act. 3. The petitioner, after giving notice under section 13(4) of the Act has approached the Chief Judicial Magistrate, Erode under section14 of the Act and there are certain orde....

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....uestion of bringing such movables for sale. The very act of the first respondent/Bank in approaching the Chief Judicial Magistrate, Erode under section 14 of the Act to take the movables belonging to the petitioner is alienation to the principles enunciated under the SARFAESI Act. 5. The first respondent/Bank in the counter affidavit has specifically admitted that they are not proceeding to sell the movable properties under the provisions of the SARFAESI Act and they are prepared to withdraw the notification unconditionally. Further, in the counter affidavit, the first respondent/Bank has chosen to state very strangely that the bank is willing to handover the movables back to the petitioner provided the charges incurred by the bank being....

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....to approach the Chief Judicial Magistrate for brake open and it was only a matter of necessity and therefore, when possession was taken, it was only preserved and for preserving the goods, the expenses were incurred. According to the learned counsel for the first respondent/Bank, the charges claimed above has to be reimbursed to the first respondent/Bank. 8. Even though the contention of the learned counsel for the first respondent/Bank is attractive and she has taken strenuous steps to pursue this court to accept her plea, we are unable to accept the same for the simple reason that the goods which are taken by the first respondent/Bank are not the subject matter of the security. In such circumstances, in all fairness, the first responde....