Sri Jawahar Singh vs The United Bank Of India & Ors

For the petitioners : Mr. Satadeep Bhattacharya Mr. Shambhu Mahato Mr. Saroj Kumar Ghosh

For the State : Mr. Samrat Sen Ms. Iti Dutta

Judgment on : August 6, 2015

1. Section 14 of the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (hereafter the SARFAESI Act) is at the

centre of controversy in all but one of these writ petitions, which have been

presented by borrowers/a secured creditor seeking to challenge orders passed

thereunder by the Chief Metropolitan Magistrate, Calcutta/the District

Magistrates of various districts in the state (hereafter the CMM/DM, wherever

referred to jointly). The writ petition that stands out from this group, without

challenging the section 14 order operating in the field, challenges the action of

dispossession following such an order. Since interpretation of section 14 would

arise as a matter of necessity, these writ petitions shall be governed by this

common judgment and order.

2. Making a departure from the usual course of ascertaining the factual matrix of

each writ petition first, I propose to record the submissions advanced in regard to the scope, effect and import of section 14 of the SARFAESI Act, the issues that

would emerge for decision based thereon and my understanding of the law, and

then I shall apply the law to each case separately.

3. While arguing W.P. 11828(W) of 2015, Mr. Basu, learned advocate for the

petitioner was heard submitting that law had undergone a sea change in view of

the decision of the Supreme Court reported in (2014) 6 SCC 1 (Harshad

Govardhan Sondagar v. International Asset Reconstruction Pvt. Ltd.) and an

application under section 14 of the SARFAESI Act cannot be disposed of by the

CMM/DM granting the prayer for assistance without putting the borrower on

notice. Considering such broad submission, Mr. Joy Saha, learned advocate was

requested to assist the Bench as amicus curiae. Elaborate submissions have been

advanced by Mr. Saha and I record my appreciation for the efforts put in by him.

4. According to Mr. Saha, prior to amendment of section 14, law was fairly well-

settled that the CMM/DM was under no obligation to give any notice either to a

borrower or to any third party and that an order passed thereunder followed a

non-adjudicatory process, which was purely executionary in nature. Reference

was made by him to the decisions reported in AIR 2009 Madras 10 (Indian

Overseas Bank v. M/s. Sree Aravindh Steels Ltd.), AIR 2010 Bombay 53 (M/s.

Puran Maharashtra Automobiles, Aurangabad v. Sub-Divisional Magistrate,

Aurangabad), and AIR 2010 Chhattisgarh 83 [Ramdas Agrawal v. Collector

(District Magistrate) District Durg].

5. It was, however, contended by Mr. Saha that with the advent of the amendments

in section 14 and the decision in Harshad Govardhan Sondagar (supra), there has been a radical change in law. He urged that the Supreme Court in such

decision while holding that the district magistrate is to give an opportunity of

hearing to the lessees and to pass orders in conformity with the principles of

natural justice has not indicated that such right of hearing is available only to

the lessees/tenants and it would be to the exclusion of all other categories of

aggrieved persons. To put it differently, Harshad Govardhan Sondagar (supra)

does not make any classification between a pre-mortgage lessee and the

borrower. The main plank on which the decision in Harshad Govardhan

Sondagar (supra) is based is sub-section (3) of section 14 and the judgment

cannot be read as confined only to a particular class; it should be read in a

manner applicable to everyone against whom an order under section 14(1) would

operate. He further urged that there could be no other example of different

categories of persons affected by the same order being entitled to challenge such

order before different fora and that, if it is held that only lessees/tenants would

be entitled to approach the High Court either under Articles 226 or 227 while

other categories of aggrieved persons must challenge the order of the CMM/DM

before the tribunal under section 17, it would create an anomalous situation :

one category of persons aggrieved by the same order would have to challenge the

same under section 17 and if unsuccessful, by preferring an appeal under section

18, and if further aggrieved, by challenging the appellate order under Article 226

or Article 227, while the lessees would be deprived of the tiers referred to in

sections 17 and 18 and would only be entitled to challenge the order of the

CMM/DM before the High Court under Articles 226 or 227. According to him, although the intention of the legislature was to bring in force a piece of legislation

that would ensure speedy recovery of secured debts, the principles of natural

justice cannot be disregarded. In the changed circumstances, section 14 can be

read to include hearing of a borrower, particularly when power is conferred on

the CMM/DM to decide whether taking over possession of the secured asset, on

the basis of the affidavit filed by the secured creditor, ought to be ordered or not.

6. Referring to the point that a hearing ought to be granted by the CMM/DM before

passing an order under section 14 of the SARFAESI Act, Mr. Saha adverted to the

well-settled principle of law that unless a statute expressly or by necessary

implication excludes the application of natural justice, the requirement to follow

natural justice must be read in the statute and that an administrative order,

visiting a person with civil consequences, ought to be made in conformity with

principles of natural justice. Reliance was placed on the decisions reported in

(1994) 5 SCC 267 [Rash Lal Yadav (Dr) v. State of Bihar], (2008) 14 SCC 151

[Sahara India (Firm), Lucknow v. CIT], (2007) 3 SCC 587 (State of Maharashtra v.

Public Concern for Governance Trust) and AIR 1967 SC 1269 (State of Orissa v.

Binapani Devi).

7. The decision reported in AIR 1978 SC 597 (Maneka Gandhi v. Union of India &

ors.) was further referred to by Mr. Saha for the proposition that if the duty to

give reasonable opportunity could be implied from the nature of functions being

performed by the authority, fairness would demand that an opportunity to show

cause ought to be extended.

8. The decisions reported in AIR 1966 SC 81 (Dwarka Nath v. Income Tax Officer),

(1990) 2 SCC 746 (Neelima Misra v. Harinder Kaur Paintal) and (2012) 10 SCC

353 (State of Gujarat v. Gujarat Revenue Tribunal Bar Association) were also

relied on in support of the argument that while discharging the duty enjoined on

the CMM/DM by the second proviso to section 14 to satisfy himself of the

contents of the affidavit filed by the secured creditor and to pass suitable orders

for taking possession, the duty to act judicially is implicit in the exercise of such

power.

9. Inviting attention to the decision reported in (2008) 15 SCC 517 (N. Padmamma

v. S. Ramakrishna Reddy), Mr. Saha argued that the procedures laid down for

deprivation of a person's right to property must be scrupulously followed.

10. It was also argued relying on Harshad Govardhan Sondagar (supra), where sub-

section (3) of section 14 had been considered in extenso, that an order passed by

the CMM/DM under sub-section (1) of section 14 cannot be challenged before the

tribunal under section 17 and the only remedy available to a person aggrieved by

such order is to invoke the writ jurisdiction of the High Court under Article 226

or its power of superintendence under Article 227.

11. Mr. Saha submitted that a hearing at the pre-possession stage would result in

filtering of frivolous applications made by authorised officers of secured creditors,

without causing undue delay and disadvantage to those secured creditors having

genuine claims and the same would ultimately advance the cause of justice.

12. Next, it was contended by Mr. Saha referring to Appendix IV appended to the

Security Interest (Enforcement) Rules, 2002 (hereafter the 2002 Rules) that even before the amendments were effected in section 14, a person aggrieved had the

right of approaching the relevant tribunal under section 17 before physical

possession of the secured asset was taken. Measures under section 13(4)

(excluding proceedings under section 14), according to him, commence with the

issuance of a notice under Rule 8(1) of the 2002 Rules. Appendix IV suggests that

the notice under Rule 8(1) is a post possession notice or a notice issued

simultaneously with the taking of possession. The question that therefore arises

is whether under the general scheme of the SARFAESI Act, any right or

representation is available to a person aggrieved before possession of the secured

asset is taken. He contended that this issue had been dealt with in the decisions

reported in (2010) 8 SCC 110 (United Bank of India vs Satyawati Tondon) and

(2011) 2 SCC 782 (Kanaiyalal Lalchand Sachdev vs State of Maharashtra). In

both the cases, orders of the concerned district magistrates were challenged

before possession was actually taken and the Supreme Court held that the

person aggrieved has a right to approach the tribunal under section 17 of the Act. Thus, the observation in the decision reported in (2013) 9 SCC 620 (Standard

Chartered Bank v. V. Noble Kumar) that an application could be made under

section 17 only after physical possession had been lost, is contrary to the

decisions in Satyawati Tondon (supra) and Kanaiyalal Lalchand Sachdev (supra).

13. Finally, relying on the decision reported in (2007) 2 SCC 711 (ICICI Bank Ltd. v.

Prakash Kaur), Mr. Saha urged the Court to lay down the law that a borrower

cannot be dispossessed by the secured creditor by force and that if the secured

creditor is resisted by the borrower while taking possession, he can be dispossessed only in accordance with law, meaning thereby taking recourse to

section 14.

14. Mr. Basu, learned advocate for the petitioner in W.P. No. 11828(W) of 2015, Mr.

Ray, learned advocate for the petitioner in W.P. No. 12210(W) of 2015, Mr. Kali,

learned advocate for the petitioner in W.P. No. 11993(W) of 2015 and Mr.

Bardhan, learned advocate for the petitioner in W.P. No. 11787(W) of 2015 have

echoed the submissions of Mr. Saha without raising any substantial additional

point.

15. Mr. Mantha, learned senior advocate for Andhra Bank in W.P. No. 11787 (W) of

2015 argued that on a plain reading of section 14, it would appear to be fairly

clear that the CMM/DM, as the case may be, does not decide the rights of

parties; considering the declaration given in the affidavit, the CMM/DM has to

satisfy himself regarding the contents of such affidavit and then to pass an

appropriate order as the facts and circumstances would warrant. According to

him, while embarking on an exercise to amend certain provisions of an

enactment the legislature necessarily has to keep in mind the objects thereof. It

was further argued by him that the amendments introduced in section 14 are

clarificatory in nature and without any clear contra intention being expressed,

neither the amendments change the nature and purpose of the parent statute

nor can the same be read in a manner to cut down the rigours envisaged in the

SARFAESI Act.

16. Citing the Constitution Bench decision reported in (2005) 2 SCC 409 (Prakash

Kumar v. State of Gujarat) and reading paragraph 14 thereof, Mr. Mantha assiduously contended that special statutes call for a different manner of reading.

He laid emphasis on the passage therein that more stringent the law, the less is

the discretion of the Court and that stringent laws are made for the purpose of

achieving its objectives, and it would be the duty of the Court to see that such

intention of the legislature is not frustrated. If there is any doubt or ambiguity in

the statute, the rule of purposive construction should be taken recourse to, to

achieve the objectives.

17. The decision reported in (2007) 2 SCC 230 (Raghunath Rai Bareja v. Punjab

National Bank) was relied on for the proposition that should there be a conflict

between law and equity, it is the law which must prevail in accordance with the

Latin maxim 'dura lex sed lex'.

18. Citing the decision reported in (2002) 4 SCC 275 (Union of India v. Delhi High

Court Bar Association), wherein the Recovery of Debts due to Banks and

Financial Institutions Act, 1993 was held to be a valid piece of legislation, Mr.

Mantha referred to the caution sounded by the Supreme Court to the effect that

the High Court could be approached under Articles 226 or 227 only after the

merits of the cases are decided by the authority constituted under such Act.

Taking a clue from such decision, it was submitted that the SARFAESI Act being

a complete code laying down the procedure to be followed by the secured

creditors as well as creating fora where the borrowers aggrieved by the actions of

the secured creditors could apply for redress of their grievance, the High Court in

exercise of 226 jurisdiction ought not to interfere unless of course grave miscarriage of justice committed in course of the secured creditor proceeding

against the borrower under section 13 and/or section 14 is manifest.

19. Mr. Mantha also relied on a Division Bench decision of the Bombay High Court in

W.P. No. 11459 of 2014 (Kamal Jajoo v. Oriental Bank of Commerce) dated

February 23, 2015 and a Full Bench decision of the Madurai Bench of the

Madras High Court in W.P. (MD) No. 11078 of 2011 (K. Arockiyaraj v. The Chief

Judicial Magistrate) dated August 27, 2013. In Kamal Jajoo (supra), the Bench

repelled the contention raised on behalf of the petitioners that the amendments

under section 14 required the concerned magistrate to adjudicate and decide the

correctness or otherwise of the information which is given in the application and

that the principal borrower gets right of taking part in the proceedings for the

purpose of assisting the magistrate. In the latter decision, it was observed in

paragraph 18 that no adjudication of rights is involved while the CMM/DM

considers a request for assistance under section 14 of the SARFAESI Act.

20. The decision reported in AIR 2014 SC 525 (Arasmeta Captive Power Company

Private Limited and anr. v. Lafarge India Private Limited) was cited by Mr.

Mantha to remind the Court as to what constitutes the ratio decidendi of a

decision and the ratio decidendi is not to be discerned from any stray word or

phrase read in isolation.

21. Responding to Mr. Saha's submission, it was submitted that the scheme of the

SARFAESI Act is clear : natural justice in a limited sense is available at the stage

of consideration of the borrower's objection/representation to the demand notice

under section 13(2) but is excluded thereafter till possession of the secured asset is taken, and is again available before the tribunal under section 17. He urged

that even though an administrative order under section 14 would have the

potential of visiting a borrower with civil consequences, the law takes sufficient

care of the situation by providing a remedy before the tribunal under section 17

where such order could be challenged in accordance with law.

22. However, Mr. Mantha agreed that possession of a secured asset cannot be taken

by the secured creditor by employing force, when faced with resistance from the

borrower/occupant of the secured asset, either under the SARFAESI Act or under

the general laws of the country. According to him, should surrender of possession

of the secured asset in favour of the authorised officer by the borrower/occupant

be not the result of his volition, the remedy under section 14 has to be pursued

for securing possession in the manner mandated by law.

23. Mr. Om Narayan Rai, learned advocate representing the State Bank of India in

W.P. No. 11993(W) of 2015 referred to the decision reported in (2008) 1 SCC 125

(Transcore v. Union of India), where recovery of possession without an

adjudicatory process has been highlighted. According to him, despite the

amendments in section 14, there has been no fundamental change in the scheme

of the SARFAESI Act and the contention of Mr. Saha that section 14

contemplates a hearing, may not be correct. Referring to the decision in V. Noble

Kumar (supra), wherein the amendments in section 14 were noticed, it was

contended that the Supreme Court did not consider hearing to be given to a

borrower to be a part of the process contemplated in section 14. Relying on the

decision reported in (2006) 1 SCC 368 (Union of India v. Major Bahadur Singh), he argued that a judgment should not be read as a statute and the decision in

Harshad Govardhan Sondagar (supra), which has read natural justice in section

14, has to be understood only in the context of a lessee in occupation of a

secured asset by virtue of a registered lease executed before creation of the

subject mortgage.

24. Regarding the aspect of applicability of force by the authorised officer to take over

possession of a secured asset when faced with resistance, Mr. Rai enlightened me

that even the Reserve Bank of India (hereafter the RBI) had issued guidelines

after the decision in Prakash Kaur (supra) vide circular dated April 24, 2008

expressing concern about the number of litigations filed against the banks in the

recent past for engaging recovery agents who have purportedly violated the law.

The banks were warned that if the RBI received complaints regarding violation of

the guidelines provided in the circular and of adoption of abusive practices

followed by the recovery agents of the banks, the same would be viewed seriously,

including consideration of imposition of a ban on a bank from engaging recovery

agents in a particular area for a limited period. The banks were also warned that

in case of persistent breach of the guidelines, the RBI would consider extending

the period of ban or the area of ban.

25. Mr. Rai further brought to my notice a master circular issued by the RBI on July

1, 2014. A paragraph therefrom was referred to by him to emphasise that

possession of a secured asset can only be taken over in accordance with the rule

of law and not by brute force. The paragraph reads as follows:

"Taking possession of property mortgaged/hypothecated to banks

(xii) In a recent case which came up before the Honourable Supreme Court, the Honourable Court observed that we are governed by rule of law in the country and the recovery of loans or seizure of vehicles could be done only through legal means. In this connection it may be mentioned that the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the Security Interest (Enforcement) Rules, 2002 framed thereunder have laid down well defined procedures not only for enforcing security interest but also for auctioning the movable and immovable property after enforcing the security interest. It is therefore desirable that banks rely only on legal remedies available under the relevant statutes while enforcing security interest without intervention of the Courts."

26. My attention was further drawn by Mr. Rai to the decisions of the Supreme Court

reported in (2008) 7 SCC 532 (ICICI Bank v. Shanti Devi Sharma) and (2012) 1

SCC 1 (Citicorp Maruti Finance Ltd. v. S. Vijayalaxmi). In the former decision, the

Court considered it appropriate to remind the financial institutions that we live in

a civilised country governed by the rule of law and that they are bound by law

and that the recovery of loans or seizure of vehicles can only be done through

legal means. In the latter decision, it was held that the bank/financier is not

entitled on the strength of the agreement to take back possession of the vehicle

by use of force and should any action be taken for recovery in violation of the

guidelines of the RBI, such an action cannot but be struck down.

27. Before concluding, Mr. Rai also cited the decision of a learned judge of the Kerala

High Court reported in AIR 2009 Kerala 85 (Sundaram BNP Paribas Home

Finance Ltd. v. State of Kerala) and relied on the following passage therefrom:

"4. Section, 14 of the Act contains the provisions, by which, a secured creditor may invoke the police power of the State, to lawfully evict persons who continue in possession in spite of measure taken under Section 13 (4), following notice under Section 13 (2). This is because, the employment of any physical power to dispossess, even in terms of a statute or enforceable order could be only had in exercise of the police power of the State. Even a court does not have the power to dispossess by force, through its officer; but has the power to secure it only through the police machinery of the State. That power cannot be conceded to any individual or institution empowered to take possession, except in cases where the power to physically dispossess is also expressly conferred. That such a power has not been conferred by the Parliament on a secured creditor under the Act and that it is never so intended, are explicit from the very making of Section 14."

28. Mr. Samrat Sen, learned senior advocate for the State in W.P. No. 10048(W) of

2015 referred to paragraph 20 of the decision in V. Noble Kumar (supra) where it

has been observed that "visualising the possibility of resistance for such action,

Parliament under Section 14 also provided for seeking the assistance of the judicial

power of the State for obtaining possession of the secured asset, in those cases

where the secured creditor seeks it". Relying thereon, Mr. Sen submitted that the

CMM/DM while exercising power under section 14 cannot wear different hats but

must necessarily wear the hat of an adjudicator since he is called upon to

exercise the judicial power of the State.

29. Referring to V. Noble Kumar (supra) once again and in particular to paragraph 21

thereof where the Court observed that the language of section 14 "originally

enacted purportedly obliged the Magistrate receiving a request under Section 14 to

take possession of the secured asset and documents, if any, related thereto in

terms of such request without any further scrutiny of the matter", Mr. Sen stressed

on the word 'purportedly' and while citing Black's Law Dictionary for tracing its

meaning, submitted that the amendments in section 14 definitely conveys a

different intention.

30. The Division Bench decision of the Gujarat High Court reported in AIR 2012

Gujarat 90 (Mansa Synthetic Pvt. Ltd. & ors. v. Union of India & anr.) was next

relied on by Mr. Sen, wherein section 14 was analysed in great detail, and it was

contended that even while upholding the constitutionality of such provision it

was held that an order thereunder is not open to an appeal in terms of the other

sections of the SARFAESI Act.

31. My decision reported in AIR 2014 Calcutta 161 (M/s. Vision Comptech

Integrators Ltd. v. State Bank of India & ors.) was also cited by Mr. Sen to

contend that that section 14 proceedings were held to have partaken the

character of quasi-judicial proceedings in view of Harshad Govardhan Sondagar

(supra).

32. Based on the aforesaid, Mr. Sen expressed the view that a hearing before the

CMM/DM would only be fair, proper and just.

33. Next, Mr. Sen sounded in agreement with Mr. Saha, Mr. Mantha and Mr. Rai

with regard to the impermissibility of user of force by an authorised officer

through himself or through recovery agents while taking measures under section

13(4) of the SARFAESI Act. He referred to section 5 of the West Bengal Public

Land (Eviction of Unauthorised Occupants) Act, 1962, section 4 of the West

Bengal Government Premises (Tenancy Regulation) Act, 1976 and section 5(2) of

the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to

emphasise that the statute itself ordained the use of force for evicting people in

unauthorised occupation of lands/premises, if the conditions therefor were

satisfied. He also referred to the decisions of the Supreme Court reported in (2002) 4 SCC 134 (State of West Bengal v. Vishnu Narayan & Associates Pvt.

Ltd.), (2013) 4 SCC 280 (State of Uttar Pradesh v. Hari Ram) and (2013) 12 SCC

631 (S.D. Bandi v. Divisional Traffic Officer, Karnataka State Road Transport

Corporation) for the proposition of law that a person may be evicted by force by

the State or its executive officers should there be a specific conferment of power

in that behalf by a statutory provision and not otherwise.

34. According to Mr. Sen, section 14(2) of the SARFAESI Act while authorising the

CMM/DM to use such force as may in his opinion be necessary speaks of

reasonable force to secure possession of a secured asset and for delivering such

possession to the authorised officer but such authorised officer in exercising the

power conferred on him by section 13(4)(a) thereof has no power to evict a

borrower/occupant from the secured asset by employing recovery agents and/or

by using force.

35. Mr. Bhattacharya, learned advocate for the petitioner in W.P. No. 10048(W) of

2015 adopted the submissions of Mr. Mantha and Mr. Rai that section 14 of the

SARFAESI Act does not envisage hearing to a defaulting borrower who resists the

attempt of the secured creditor to take peaceful possession of the secured asset

and drives him to seek assistance of the CMM/DM. He placed the statement of

reasons and objects of the Enforcement of Security Interest and Recovery of

Debts Laws (Amendment) Bill, 2011 and submitted that no clear reason is

discernible therefrom as to why the legislature felt it necessary to amend section

14; nonetheless, the amendments that have been introduced do not in any

manner change the process from a non-adjudicatory to an adjudicatory one.

36. In support of his submission that hearing is not required to be extended by the

CMM/DM, Mr. Bhattacharya relied on the Division Bench decision of the Gujarat

High Court, reported in AIR 2011 Gujarat 147 (IDBI Bank Limited v. District

Magistrate, Navsari). It was also submitted relying thereon that measures taken

under section 14 though amount to measures taken under section 13(4) of the

Act, in view of sub-section (3) of section 14 such measures cannot be called in

question before any court or tribunal and hence, an order under section 14 can

only be challenged before the High Court under Article 226 or under Article 32

before the Supreme Court.

37. The Division Bench decision of the Kerala High Court reported in AIR 2009

Kerala 1 (Aseena v. Sub-Divisional Magistrate, Palakkad) was cited for the

proposition that the CMM/DM exercising power conferred by section 14 is not

authorised to delegate the function and cannot make over the matter to the sub-

divisional magistrate for passing orders.

38. Another Division Bench decision of the Kerala High Court reported in AIR 2009

Kerala 14 (Muhammed Ashraf & anr. v. Union of India & ors.) was cited by him,

where the scope of jurisdiction of the magistrate exercising power under section

14 of the SARFAESI Act had been clearly explained.

39. The decision reported in (2010) 8 SCC 24 [Afcons Infrastructure Ltd. v. Cherion

Varkey Construction Co. (P) Ltd.] was relied on by Mr. Bhattacharya to contend

that interpretative tools could be used to set right the situation by adding or

omitting or substituting the words in the statute when the plain and grammatical

construction would lead to confusion, absurdity and repugnancy.

40. According to Mr. Bhattacharya, an order passed by the CMM/DM, as the case

may be, refusing to grant assistance to the secured creditor to take possession of

a secured asset can only be challenged in writ proceedings, since no remedy

under section 17 is available to such creditor, while the borrower can always

challenge such order before the relevant tribunal.

41. In his reply, Mr. Saha while reacting to the decision in Kamal Jajoo (supra)

submitted that the same ought not to be relied upon for diverse reasons. First, it

is based entirely on two earlier decisions of the Supreme Court reported in (2004)

4 SCC 311 (Mardia Chemicals Limited vs. Union of Inia) and Transcore (supra).

Both were rendered prior to the amendments in section 14 of the SARFAESI Act

and thus cannot be relied upon to decide the effect of such amendments or

whether section 14 was amended to afford an opportunity of hearing to a person

aggrieved. Secondly, the decision does not contain any discussion as to why the

necessity to amend section 14 was felt or required. Thirdly, the decision is silent

with regard to the nature of the 'satisfaction' required to be arrived at by the

CMM/DM on the basis of the affidavit to be filed before him. Finally, the decision

fails to consider the effect of the decisions reported in Satyawati Tondon (supra)

and Kanaiyalal Lalchand Sachdev (supra), laying down the law that the borrower

has a right of hearing under section 17 of the SARFAESI Act even before physical

possession of the secured asset is taken.

42. Insofar as K. Arockiyaraj (supra) is concerned, it was submitted by Mr. Saha that

the issue involved there was entirely different. The matter was referred to the Full

Bench to decide whether reference to chief metropolitan magistrate in section 14 of the SARFAESI Act would include a chief judicial magistrate or not. The

observations made in paragraphs 15, 16 and 18 of the decision are merely by way

of declaration, but largely unsupported by any reason, discussion or justification.

The only justification for the conclusions voiced in paragraph 18 may be found in

paragraph 16 to the effect that since section 14 permits the delegation of

authority by the CMM/DM, the order must be deemed to be administrative and

not judicial inasmuch as judicial authorities have no power to delegate their

functions in terms of the principle delegata potestas non potest deligari.

According to him, this reasoning is erroneous. Section 14(1-A) does not permit

any delegation of the order to be passed by the CMM/DM in terms of section

14(1), and what is permitted to be delegated is only the execution of the order

and/or decision arrived at by the CMM/DM; thus, in terms of section 14(1-A),

there is no delegation of the decision making process or the order to be passed

and the only delegation is in respect of execution of the order passed or decision

arrived at by the CMM/DM.

43. On the rival contentions advanced in course of hearing of these writ petitions, the

following substantial questions of law emerge for decision:

a. With the amendments introduced in section 14 of the SARFAESI Act and

the decision in Harshad Govardhan Sondagar (supra), does the process

leading to orders passed by the CMM/DM for taking possession of the

secured assets involve an adjudicatory process, meaning thereby putting

the borrower/guarantor/occupier of the secured asset on notice, as

distinguished from a non-adjudicatory process prevalent earlier? b. Is an order passed under section 14(1) of the SARFAESI Act not amenable

to challenge in an application under section 17 in view of section 14(3) and

the decision in Harshad Govardhan Sondagar (supra)?

44. One other question that would engage my consideration is, does section 13(4)(a)

or any other provision of the SARFAESI Act confer power on the authorised

officer/secured creditor to take possession of a secured asset by dispossessing

the borrower or any person in occupation thereof by force, should the borrower or

occupant refuse to surrender possession or resist such attempt? Assuming the

answer to be in the negative, who would be entitled to dispossess a borrower/an

occupant from the secured asset and how?

45. It would not be inapt, at this stage, to read section 14 of the SARFAESI Act in its

new avatar. Section 14, with the amendments in italics, for facility of reference

and decision is reproduced hereunder:

"14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.--

(1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured asset 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:

Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that--

(i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application;

(ii) the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period;

(iii) the borrower has created security interest over various properties giving the details of properties referred to in sub-clause (ii) above;

(iv) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount;

v) consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a non- performing asset;

(vi) affirming that the period of sixty days notice as required by the provisions of sub-section (2) of Section 13, demanding payment of the defaulted financial assistance has been served on the borrower;

(vii) the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower;

(viii) the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub-section (4) of Section 13 read with Section 14 of the principal Act;

(ix) that the provisions of this Act and the rules made thereunder had been complied with:

Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets:

Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act.

(1-A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,--

(i) to take possession of such assets and documents relating thereto; and

(ii) to forward such assets 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. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate (sic or) any officer authorised by the Chief Metropolitan Magistrate or District Magistrate done in pursuance of this section shall be called in question in any court or before any authority."

46. Earlier to the amendments effected in section 14, what was required of the

CMM/DM upon receiving an application from a secured creditor has been laid

down in several decisions of the high courts of the country; I need not refer to all

but two of them.

47. The first is the one reported in 2007 Cri. L.J. 2544 (M/s. Trade Well v. Indian

Bank). There, the High Court of Bombay was concerned with the question

whether the CMM/DM while dealing with the written request made by a secured

creditor under section 14 of the SARFAESI Act is required to give notice to the

borrower or any other person, who may be in possession of the secured assets,

and give him a hearing. After referring to Transcore (supra), the Court answered

the question in the negative and gave the following directions:

"1. The bank or financial institution shall, before making an application under Section 14 of the NPA Act, verify and confirm that notice under Section 13(2) of the NPA Act is given and that the secured asset falls within the jurisdiction of CMM/DM before whom application under Section 14 is made. The bank and financial institution shall also consider before approaching CMM/DM for an order under Section 14 of the NPA Act, whether Section 31 of the NPA Act excludes the application of Sections 13 and 14 thereof to the case on hand.

2. CMM/DM acting under Section 14 of the NPA Act is not required to give notice either to the borrower or to the 3rd party.

3. He has to only verify from the bank or financial institution whether notice under Section 13(2) of the NPA Act is given or not and whether the secured assets fall within his jurisdiction. There is no adjudication of any kind at that stage.

4. It is only if the above conditions are not fulfilled that the CMM/DM can refuse to pass an order under Section 14 of the NPA Act by recording that the above conditions are not fulfilled. If these two conditions are fulfilled, he cannot refuse to pass an order under Section 14.

5. Remedy provided under Section 17 of the NPA Act is available to the borrower as well as the third party.

6. Remedy provided under Section 17 is an efficacious alternative remedy available to the third party as well as to the borrower where all grievances can be raised.

7. In view of the fact that efficacious alternative remedy is available to the borrower as well as to the third party, ordinarily, writ petition under Articles 226 and 227 of the Constitution of India should not be entertained.

8. In exceptional cases of gravest injustice, a writ petition could be entertained by this Court.

9. Great care and caution must be exercised while entertaining a writ petition because in a given case it may result in frustrating the object of the NPA Act.

10. Even if a writ petition is entertained, as far as possible, the parties should be relegated to the remedy provided under Section 17 of the NPA Act before the DRT by passing an interim order which will protect the secured assets. Adjudication and final order should be left to the DRT as far as possible."

48. The other one is Mansa Synthetic Pvt. Ltd. (supra), cited by Mr. Sen, where the

constitutional validity of section 14 was in question before the Division Bench of

the Gujarat High Court. While declaring section 14 intra vires, the Court had the

occasion to observe as follows:

"15.2. ***** Thus, it is apparent that the role envisaged by the legislature insofar as the Authority is concerned, is a ministerial role in the form of rendering assistance and exercising powers by virtue of the authority vested in the District Magistrate or the Chief Metropolitan Magistrate including use of force as may be necessary. The said Authority, namely, the Chief Metropolitan Magistrate or the District Magistrate is not vested with any adjudicatory powers. There is no other provision under the Securitisation Act in exercise of which the said Authority, who is approached by a secured creditor, can undertake adjudication of any dispute between the secured creditor and the debtor or the person whose property is the secured asset of which possession is to be taken. If such adjudicatory powers were to be vested in the Authority, the Securitisation Act would have made a specific provision in this regard."

"15.3. ***** under the guise of acting under Section 14 of the Securitisation Act the Authority cannot be permitted to usurp statutory powers vested in the Tribunal.

* * * 15.5. Hence, the Authority who is called upon to act under Section 14 of the Securitisation Act can only assist, nay, is bound to assist the secured creditor in taking possession of the secured asset. Any dispute between the parties regarding the secured asset raised before the Authority cannot be gone into by the Authority.

* * * 15.10. Therefore, under section 14 of the Securitisation Act, Chief Metropolitan Magistrate or District Magistrate, as the case may be, is only rendering assistance to the secured creditor in exercising the right given to the creditor under section 13(4) and remedy of the aggrieved party is to file an appeal before the Debts Recovery Tribunal under section 17. It is clear that under sub-sections (2), (3) and (4) of section 17 of the Securitisation Act, the statute has provided a complete code, including the powers to the Tribunal to declare any of the measures taken by the secured creditor under section 13(4) of the Securitisation Act invalid and consequential restoration of possession to the person from whom the possession was taken. In the absence of any adjudicatory power vested in the Magistrate under section 14, the above authority cannot exercise statutory powers vested in the Tribunal. ***** 15.11. A reading of the statutory provisions would show that under Section 14 of the Act, the Magistrate is only rendering assistance to the secured creditor in taking possession of the secured assets as provided under Section 13(4) of the Act. After 60 days' notice as prescribed under Section 13(2), secured creditor can approach the Magistrate for taking possession of the land. Reading Section 13(4) and Section 14 of the Act in conjunction with each other makes it clear that the source of power to take possession of the secured assets of the borrower can be traced in Section 13(4) of the Act and not under Section 14 of the Act, which has been indicated as an aid for execution of the decision taken by the secured creditor to take possession of the secured assets or documents. In other words, the substantive provision entitling the secured creditor to take possession of the secured assets is contained in Section 13(4) of the Act and Section 14 of the Act merely contains a provision to facilitate the secured creditor for taking over possession without any impediment. *****"

49. I agree with the views extracted above.

50. Right from the decision of the Supreme Court in Mardia Chemicals (supra), where

the constitutionality of various provisions of the SARFAESI Act were under

challenge till the decision in V. Noble Kumar (supra), the law has clearly been laid

down that the enactment in question envisages enforcement of security interest

created in favour of a secured creditor without the intervention of courts and

tribunals and an adjudicatory process qua the points raised by the borrower

against the secured creditor taking possession of the secured asset could

commence only after possession were taken by the latter. Section 14 essentially

being a method for taking possession, no adjudication of rival claims could be

involved at that stage. The parties have not disputed this position.

51. However, has the situation changed with the introduction of the amendments in

section 14 or because of Harshad Govardhan Sondagar (supra)? It would be my

endeavour to find an answer by analysing section 14 at the outset.

52. If one reads the marginal note of section 14 first, it would appear that the same is

relatable to assistance to be rendered by the CMM/DM to a secured creditor in

taking possession of a secured asset. The marginal note as in the original text of

section 14 exists even after the amendment thereof. I shall refer to some

decisions of the Supreme Court at a later part of this judgment as to whether the

'marginal note' of a section can be referred to as an aid for interpreting the

section, should any difficulty arise because of ambiguity.

53. An effort was made to find out what led to section 14 being amended but the

statement of reasons and objects of the Enforcement of Security Interest and

Recovery of Debts Laws (Amendment) Bill, 2011, placed by Mr. Bhattacharya, shed no light insofar as the necessity to amend it is concerned. Let me now

venture to make an attempt to discern what led to such amendment. Protection

to borrowers, as held in V. Noble Kumar (supra), is definitely one of the reasons

for introduction of the proviso requiring the authorised officer of a secured

creditor to file an affidavit. That the affidavit must touch upon the 9 (nine) points

indicated in clauses (i) to (ix) of the first proviso and the satisfaction of the

CMM/DM in regard to the contents of such affidavit is condition precedent before

passing suitable order, as ordained by the second proviso, is clearly intended to

prevent unscrupulous secured creditors wreaking havoc by applying under

section 14 for taking possession of a particular property identifying it as a

secured asset, although there could be no warrant for so applying. V. Noble

Kumar (supra), therefore, stresses on the need for examining the factual

correctness of the assertions made in the affidavit by the CMM/DM and not the

legal niceties of the transaction. One other reason, to my mind, is to promote

accountability by insisting on an affidavit being filed by the authorised officer of

the secured creditor in support of the prayer for taking possession. If at any

subsequent stage after passing of an order under section 14 the authorised

officer is found to have filed a false affidavit, he may be exposed to prosecution

under section 340, Criminal Procedure Code. Permitting the CMM/DM to

delegate the power of taking possession of the secured asset seems to me to be

the other reason for incorporating an additional sub-section, i.e. (1-A). Going by

the language of un-amended section 14, it would appear that the CMM/DM had

to do the desk work and the field work as well for taking possession. However, in these days of hectic activity in every sphere, it is indeed difficult for a public

functionary to himself perform all the duties he is privileged to perform and,

therefore, has to take the aid of agents and delegates. Introduction of sub-section

(1-A) allows the CMM/DM to delegate the field work of taking possession in

execution of the order passed under sub-section (1) of section 14 to a subordinate

officer, presumably to relieve the CMM/DM of the heavy pressure of judicial

work/administrative work thereby leading to likely inconvenience in faithfully

carrying out the specified duty. Judicial interference in respect of pre-amended

section 14 orders passed by the CMM/DM authorising the authorised officers of

secured creditors to take possession of the secured assets with the assistance of

the local police, instead of the CMM/DM himself taking possession in terms of

the statutory mandate, is not uncommon. The last proviso to sub-section (1) is

conceived to save applications already filed before the CMM/DM before the

introduction of the amendments from failing for want of an affidavit, although the

language employed therein bears clear reflection of the draftsman being

inattentive. Sub-section (2) has been left untouched. Lastly, an amendment in

sub-section (3) has been effected, which is intended to save the officer authorised

by the CMM/DM (to execute the order for taking possession) from being

proceeded against before any court or authority in respect of any act done by him

in pursuance thereof. These being the nature of amendments, I am inclined to

the view that the entire sub-stratum of section 14 remains unchanged even after

the amendments made therein.

54. It has been argued by Mr. Saha that the requirement to comply with natural

justice has neither been expressly excluded nor excluded by implication and,

therefore, natural justice has to be read into section 14. It has also been

contended that since the order of the CMM/DM under section 14 for taking

possession would visit a borrower with civil consequence, no such order can be

made without complying with natural justice. I am afraid, the contentions do not

impress me at all. The scheme of the SARFAESI Act, as explained in Mardia

Chemicals (supra), Transcore (supra), V. Noble Kumar (supra) and other

decisions, is that it is intended to facilitate quick recovery of secured debts

without extending any opportunity of hearing to a borrower and without

judicial/quasi-judicial intervention till such time possession of the secured asset

is taken by the secured creditor after serving the requisite notices and responding

to the objection/representation that may be lodged/preferred by the borrower

under section 13(3A). That Mardia Chemicals (supra) and Transcore (supra) are

pre-section 14 amendment decisions, make no difference. There is no

fundamental change in the object and purposes of the SARFAESI Act even after

the amendments. Since the need for a borrower to draw legal assistance arises

only after a demand notice under sub-section (2) is issued, it has been

experienced in very many cases that sub-section (1) of section 13, which is the

harbinger of misfortune of recalcitrant borrowers, is completely overlooked by

those representing them. The present cases are not too different. Decision by a

quasi-judicial authority (see section 17) upon compliance with natural justice

stands deferred till such time possession is taken. The SARFAESI Act does not remotely suggest compliance with natural justice at the stage when section 13(4)

or 14 operates. Paragraph 36 of V. Noble Kumar (supra) explains that there are 3

(three) methods for taking possession of a secured asset. In view thereof, section

14 cannot stand independent of sub-section 13(4). If a borrower has no right of

hearing when the secured creditor takes possession under section 13(4), a

fortiori, no hearing can be demanded by a borrower when he succeeds in resisting

possession being gained over by the authorised officer of the secured creditor or

does not on his own surrender possession, and thus compels him to work out his

remedy by seeking an order under section 14 from the CMM/DM. Only a post-

possession right to approach the tribunal is conferred on a borrower in terms of

section 17, nothing more and nothing less.

55. One cannot lose sight of the fact that constitutionality of section 14 in its original

form had been upheld in Mansa Synthetics Pvt. Ltd. (supra). The legislature,

however, felt the need to amend section 14, may be for reasons indicated by me

in paragraph 53 supra. If it were the intention of the legislature to extend

opportunity of hearing to a borrower before the CMM/DM, it was free to do so.

Advisedly, the legislature did not do so, for, it would have militated against the

scheme of the SARFAESI Act and more particularly section 13 thereof. It is

implicit in the scheme of the SARFAESI Act that natural justice only to a limited

extent is available and not beyond what is expressly provided. There seems to be

little merit in the argument advanced by Mr. Saha and I hold that the language of

section 14 is too clear and unambiguous, which does not admit of any requirement of complying with natural justice by putting the borrower on notice

while an application thereunder is under consideration.

56. Assuming that section 14 is not too clear and is ambiguous on the aspect of not

excluding natural justice by implication, the marginal note may be taken into

consideration for the purpose of proper construction of section 14. That the

CMM/DM does not discharge a quasi-judicial duty can well be inferred because

he is not supposed to decide any contentious point but is mandated to assist

secured creditor in taking possession of secured asset (emphasis supplied).

Referring to the decision reported in 1954 SCR 444 (CIT v. Bhogilal Laherchand),

it has been argued by Mr. Saha that marginal notes in an Indian statute cannot

be referred to for the purpose of construing the statute. However, reference was

also made by him to the decisions reported in (1981) 1 SCC 315 (Life Insurance

Corporation of India v. D.J. Bahadur) and (2009) 16 SCC 659 (Tata Power

Company Limited v. Reliance Energy Limited) for the proposition that a marginal

note is relevant only if the language of the statute is ambiguous.

57. The decision in Bhogilal Laherchand (supra) in paragraph 14 quoted a passage

from the decision reported in 1950 SCR (CIT v. Ahmedbhai Umerbhai & Co.). The

Supreme Court noticed that the marginal note was changed so as not to confine

applicability of the relevant section to non-residents but also to residents. The

decisions in Ahmedbhai Umerbhai (supra) and Bhogilal Laherchand (supra) do

not lay down the law that a marginal note can never be looked into, even in case

of doubt or ambiguity.

58. That a marginal note can be considered as an aid for interpreting the section of

an enactment has been repeatedly held by the Supreme Court at least from the

seventies of the last century. I shall now notice some other decisions of the

Supreme Court that say with clarity that a marginal note is relevant for

interpreting a statute.

59. In the decision reported in (1971) 2 SCC 779 (Union of India v. H.S. Dhillon), it

has been held that a marginal note can serve as a guidance where there is

ambiguity or doubt about the true meaning of the provision.

60. The Supreme Court in the decision reported in AIR 1975 SC 1967 (Indian

Aluminium Company v. Kerala State Electricity Board) noted:

"18. ***** It is true that the marginal note cannot afford any legitimate aid to a construction of a section, but it can certainly be relied upon as indicating the drift of the section, or, to use the words of Collins M. R. in Bushell v. Hammond, (1904) 2 KB 563 'to show what the section was dealing with'."

61. Yet again, Hon'ble E.S. Venkataramaih, J. (as His Lordship then was) in the

decision reported in 1981 Supp SCC 87 (S.P. Gupta v. Union of India) observed

as follows:

"1111. A reading of the passages and decisions referred to above leads to the view that the Court while construing a statute has to read both the marginal notes and the body of its provisions. Whether the marginal notes would be useful to interpret the provisions and if so to what extent depends upon the circumstances of each case. No settled principles applicable to all cases can be laid down in this fluctuating state of the law as to the degree of importance to be attached to a marginal note in a statute. If the relevant provisions in the body of the statute firmly point towards a construction which would conflict with the marginal note, the marginal note has to yield. If there is any ambiguity in the meaning of the provisions in the body of the statute, the marginal note may be looked into as an aid to construction."

62. The same view has been reiterated in several subsequent decisions of the

Supreme Court delivered in this century, viz. (2004) 2 SCC 579 (N.C. Dhoundial

v. Union of India), (2009) 7 SCC 345 (Eastern Coalfields Ltd. v Sanjay Transport

Agency) and (2013) 10 SCC 772 (Union of India v. National Federation of the

Blind).

63. The marginal note of section 14 shows what section 14 is all about. It provides an

avenue for the secured creditor, when faced with resistance by the borrower or

anyone else, or when the borrower simply refuses to surrender possession, to

seek administrative assistance of the CMM/DM to facilitate taking of possession

of a secured asset and/or documents in relation thereto to ultimately enable the

secured creditor to put up the secured asset for sale and to recover its dues.

64. I am inclined to the view that whichever way one sees section 14, either with or

without the marginal note, there is no reason whatsoever for not giving to the

plain words of the section the meaning that on the face of it they bear.

65. Before concluding my discussion on the point, the observation made in

paragraph 20 of V. Noble Kumar (supra) that the "Parliament under Section 14

also provided for seeking the assistance of the judicial power of the State for

obtaining possession of the secured asset" ought to be considered.

66. At the dawn of the Constitution, the Supreme Court was considering what is

meant by a "court". The Constitution Bench in its decision reported in AIR 1950

SC 188 (Bharat Bank Ltd. v. Employees) ruled that before a person or persons can be said to constitute a "court", it must be held that they derive their powers

from the State and are exercising the judicial powers of the State.

67. First, what constitutes the 'judicial power of the State needs to be understood. I

can do no better but refer to two other Constitution Bench decisions of the

Supreme Court.

68. In the decision reported in AIR 1965 SC 1595 (Associated Cement Companies

Ltd. v. P.N. Sharma), the principal point of law which arose in the civil appeal by

special leave was whether the State of Punjab, respondent no. 2, exercising its

appellate jurisdiction under Rule 6(6) of the Punjab Welfare Officers Recruitment

and Conditions of Service Rules, 1952 was a tribunal within the meaning of

Article 136 (1) of the Constitution. It was held as follows:

"8. In every State there are administrative bodies or authorities which are required to deal with matters within their jurisdiction in an administrative manner and their decisions are described as administrative decisions. In reaching their administrative decisions, administrative bodies can and often do take into consideration questions of policy. It is not unlikely that even in this process of reaching administrative decisions, the administrative bodies of authorities are required to act fairly and objectively and would in many cases have to follow the principles of natural justice; but the authority to reach decisions conferred on such administrative bodies is clearly distinct and separate from the judicial power conferred on Courts, and the decisions pronounced by administrative bodies are similarly distinct and separate in character from judicial decisions pronounced by Courts.

9. *** As in the case of Courts, so in the case of tribunals, it is the State's inherent judicial power which has been transferred and by virtue of the said power, it is the State's inherent judicial function which they discharge. Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the State transfers its judicial functions and powers mainly to the Courts established by the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribunals by entrusting to them the task of adjudicating upon special matters and disputes between parties. It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the Courts, and features which are distinct and separate. The basis and the fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State."

69. The other decision is reported in 1992 Supp (2) SCC 651 (Kihoto Hollohan v.

Zachillhu), wherein it was observed :

"99. Where there is a lis -- an affirmation by one party and denial by another -- and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. ***"

70. Reference in this connection may also be made to the decision reported in AIR

2005 SC 3549 (Management Committee, Montfort Senior Secondary School v.

Vijay Kumar) where meaning assigned to the words 'judicial', 'judicial power' and

'judicial authority' in certain foreign decisions and legal dictionaries were noticed.

The relevant passage is quoted below :

"14. In Regina John M'Evoy v. Dublin Corporation (1878) 2 LR Ir 371 (D) it was observed as under :

"The term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances and imposing liability or affecting the rights of others."

15. In Huddart Parker and Co. v. Moorehead (1909) 8 CLR 330 (E) judicial powers were defined as under :-

"The words 'judicial power' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."

In Rex v. London County Council (1931) 2 KB 215 (F) judicial authority was defined as under :-

"It is not necessary that it should be a Court in the sense in which this Court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition and it is not necessary to be strictly a Court."

In Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson (1892 (1) QB 431) dealing with the meaning of the word 'judicial' it was observed as under :

"The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a Judge or by Justices in Court or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind, that is, a mind to determine what is fair and just in respect of the matters under consideration."

16. Reference to expressions 'judicial', and 'judicial power' as detailed in Advanced Law Lexicon by P. Ramanath Aiyar, 3rd Edition, 2005 (at pages 2512 and 2518) would be appropriate :

"Judicial : Belonging to a cause, trial or judgment; belonging to or emanating from a judge as such; the authority vested in a judge. (Bouvier L. Dict.); of, or belonging to a Court of justice; of or pertaining to a judge; pertaining to the administration of justice, proper to a Court of law.

The word 'judicial' is used in two senses. The first to designate such bodies or officers 'as have the power of adjudication upon the rights of persons and property. In the other class of cases it is used to express an act of the mind or judgment upon a proposed course of official action as to an object of corporate power, for the consequences of which the official will not be liable, although his act was not well judged. (See Royal Aquarium v. Parkinson, (1892) 1 QB

431).

Judicial Power : The power to decide cases and controversies (Craig R. Ducat - Constitutional Interpretation).

In "Words and Phrases - Legally Defined" by John B. Saunders, Volume 3, at page 113, 'Judicial Power' has been defined :

'If a body which has power to give a binding and authoritative decision is able to take action so as to enforce that decision, then but only by then, according to the definition quoted, all the attributes of judicial power are plainly present.' 'Judicial power' as defined by Chief Justice Griffith in Huddart Parker and Co. v. Moorehead (1909) 8 CLR 330 at 357 approved by the Privy Council in Shell Company of Australia v. Federal Commr. of Taxation, (1931) AC 275 at p. 283 means the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.

The authority to determine the rights of persons or property by arbitrating between adversaries in specific controversies at the instance of a party thereto; the authority vested in some Court, officer, or person to hear and determine when the rights of persons or property or the propriety of doing an act is the subject-matter of adjudication. (Grider v. Tally 54, Am Rep 65).

A judge exercises 'judicial powers' not only when he is deciding suits between parties, but also when he exercises disciplinary powers which are properly appurtenant to the office of a judge. (A.G. of Gambia v. N' Jie, 1961 AC 617)."

71. My understanding of the law is that the judicial power of the State for

administration of justice to its subjects can exclusively be vested in courts or

tribunals, which necessarily have to decide disputes between parties that are

brought before it according to accepted norms of judicial procedure. That a true

judicial decision presupposes an existing dispute between two or more parties,

and then involves four requisites: (1) The presentation (not necessarily orally) of

their case by the parties to the dispute; (2) if the dispute between them is a

question of fact, the ascertainment of the fact by means of evidence adduced by

the parties to the dispute and often with the assistance of argument by or on

behalf of the parties on the evidence; (3) if the dispute between them is a question

of law, the submission of legal argument by the parties, and (4) a decision which

disposes of the whole matter by a finding upon the facts in dispute and

application of the law of the land to the facts so found, including where required

a ruling upon any disputed question of law, seems to have been accepted by the

Supreme Court itself in Bharat Bank (supra).

72. In view of such understanding based on authoritative decisions of the Supreme

Court, I am sure the Supreme Court in V. Noble Kumar (supra) never intended to

lay down as law declared under Article 136 read with Article 141 of the

Constitution that the power exercised by the CMM/DM under section 14 of the

SARFAESI Act granting assistance for obtaining possession of the secured asset

is the exercise of the judicial power of the State. That this observation does not

constitute the ratio of the decision is evident from observations made in

paragraph 25 thereof, where it has been clearly held that the legal niceties of the

transaction between the secured creditor and the borrower are not to be

examined by the CMM/DM. If indeed a lis were involved, it would not be open to

the CMM/DM to say that it would examine factual aspects only and not the legal

niceties. Since the CMM/DM does not decide any lis between parties upon

receiving evidence from them, the judicial power of the State is not exercised by

him.

73. In view of the above conclusions, I regret my inability to be ad idem with Mr.

Saha, Mr. Sen and the other learned advocates to read natural justice in section

14.

74. Harshad Govardhan Sondagar (supra) being the sheet anchor of the arguments

in support of the necessity of reading natural justice in section 14 would fall for

consideration next.

75. The principal questions of law that arose for consideration in Harshad Govardhan

Sondagar (supra) are required to be noted. They are:

(i) whether the provisions of the SARFAESI Act have in any way affected the right of a lessee to remain in possession of the secured asset during the period of a lease ? (paragraph 15).

(ii) whether the provisions of the SARFAESI Act have the effect of terminating these valid leases made by the borrower or the mortgagor made in accordance with the provisions of the Transfer of Property Act? (paragraph 18).

(iii) what is the nature of the right of the lessee and as to when the lease under the Transfer of Property Act gets determined? (paragraph 22).

(iv) whether section 14 of the SARFAESI Act confers any power on the CMM/DM to assist the secured creditor in taking possession of the secured asset which is in lawful possession of the lessee under a valid lease? (paragraph 23).

(v) what are the remedies available to the lessee where he is threatened to be dispossessed by any action taken by the secured creditor under Section 13 of the SARFAESI Act? (paragraph 27).

(vi) whether a lessee has any remedy by way of an appeal under Section

17 of the SARFAESI Act when the secured creditor attempts to take over possession of the secured asset which is in possession of the lessee? (paragraph 30).

(vii) whether the tenants have remedies under the tenancy law concerned? (paragraph 35).

76. Proceeding to answer the first four questions of law and the last one set out

above, the Supreme Court held that where the lawful possession of the secured

asset is not with the borrower, but with the lessee under a valid lease, such

lessee has a right to enjoy the property and this right is a right to property which

cannot be taken away without the authority of law as provided in Article 300-A of

the Constitution. It was further held that since there is no mention in sub-section

(4) of section 13 of the SARFAESI Act that a lease made by the borrower in favour

of a lessee will stand determined on the secured creditor deciding to take any of

the measures mentioned in section 13 thereof, so long as a lease of an immovable

property does not get determined, the possession of the lessee is lawful and such

lawful possession of a lessee has to be protected by all courts and tribunals. The Court further held that possession of the secured asset from a lessee in lawful

possession under a valid lease is not required to be taken under the provisions of

the SARFAESI Act and the CMM/DM does not have any power under section 14

of the SARFAESI Act to take possession of the secured asset from such a lessee

and hand over the same to the secured creditor, and that when a secured

creditor moves the CMM/DM for assistance to take possession of the secured

asset, he must state in the affidavit accompanying the application that the

secured asset is not in possession of a lessee under the valid lease made prior to

creation of the mortgage by the borrower or made in accordance with section 65-

A of the Transfer of Property Act (hereafter the TP Act) prior to receipt of a notice

under sub-section (2) of section 13 of the SARFAESI Act by the borrower. It was

also held that in view of section 34 of the SARFAESI Act, recourse to civil courts

would not be available.

77. Question (v) was answered by the Court by holding as follows:

"28. A reading of sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002 would show that the possession notice will have to be affixed on the outer door or at the conspicuous place of the property and also published, as soon as possible but in any case not later than seven days from the date of taking possession, in two leading newspapers, one in vernacular language having sufficient circulation in that locality, by the authorised officer. At this stage, the lessee of an immovable property will have notice of the secured creditor making efforts to take possession of the secured assets of the borrower. When, therefore, a lessee becomes aware of the possession being taken by the secured creditor, in respect of the secured asset in respect of which he is the lessee, from the possession notice which is delivered, affixed or published in sub-rule (1) and sub-rule (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, he may either surrender possession or resist the attempt of the secured creditor to take the possession of the secured asset by producing before the authorised officer proof that he was inducted as a lessee prior to the creation of the mortgage or that he was a lessee under the mortgagor in accordance with the provisions of Section 65-A of the Transfer of Property Act and that the lease does not stand determined in accordance with Section 111 of the Transfer of Property Act. If the lessee surrenders possession, the lease, even if valid, gets determined in accordance with clause (f) of Section 111 of the Transfer of Property Act, but if he resists the attempt of the secured creditor to take possession, the authorised officer cannot evict the lessee by force but has to file an application before the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act and state in the affidavit accompanying the application, the name and address of the person claiming to be the lessee. When such an application is filed, the Chief Metropolitan Magistrate or the District Magistrate will have to give a notice and give an opportunity of hearing to the person claiming to be the lessee as well as to the secured creditor, consistent with the principles of natural justice, and then take a decision. If the Chief Metropolitan Magistrate or the District Magistrate is satisfied that there is a valid lease created before the mortgage or there is a valid lease created after the mortgage in accordance with the requirements of Section 65-A of the Transfer of Property Act and that the lease has not been determined in accordance with the provisions of Section 111 of the Transfer of Property Act, he cannot pass an order for delivering possession of the secured asset to the secured creditor.

But in case he comes to the conclusion that there is in fact no valid lease made either before creation of the mortgage or after creation of the mortgage satisfying the requirements of Section 65-A of the Transfer of Property Act or that even though there was a valid lease, the lease stands determined in accordance with Section 111 of the Transfer of Property Act, he can pass an order for delivering possession of the secured asset to the secured creditor.

29. Sub-section (3) of Section 14 of the SARFAESI Act provides that no act of the Chief Metropolitan Magistrate or the District Magistrate or any officer authorised by the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of Section 14 shall be called in question in any court or before any authority. The SARFAESI Act, therefore, attaches finality to the decision of the Chief Metropolitan Magistrate or the District Magistrate and this decision cannot be challenged before any court or any authority. But this Court has repeatedly held that statutory provisions attaching finality to the decision of an authority excluding the power of any other authority or court to examine such a decision will not be a bar for the High Court or this Court to exercise jurisdiction vested by the Constitution because a statutory provision cannot take away a power vested by the Constitution. ......

In our view, therefore, the decision of the Chief Metropolitan Magistrate or the District Magistrate can be challenged before the High Court under Articles 226 and 227 of the Constitution by any aggrieved party and if such a challenge is made, the High Court can examine the decision of the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, in accordance with the settled principles of law."

78. Insofar as question (vi) is concerned, the Court held that:

"32. When we read sub-section (1) of Section 17 of the SARFAESI Act, we find that under the said sub-section 'any person (including borrower)', aggrieved by any of the measures referred to in sub- section (4) of Section 13 taken by the secured creditor or his authorised officer under the chapter, may apply to the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which such measures had been taken. We agree with Mr Vikas Singh that the words 'any person' are wide enough to include a lessee also. It is also possible to take a view that within 45 days from the date on which a possession notice is delivered or affixed or published under sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, a lessee may file an application before the Debts Recovery Tribunal having jurisdiction in the matter for restoration of possession in case he is dispossessed of the secured asset. But when we read sub-section (3) of Section 17 of the SARFAESI Act, we find that the Debts Recovery Tribunal has powers to restore possession of the secured asset to the borrower only and not to any person such as a lessee. Hence, even if the Debts Recovery Tribunal comes to the conclusion that any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor are not in accordance with the provisions of the Act, it cannot restore possession of the secured asset to the lessee. Where, therefore, the Debts Recovery Tribunal considers the application of the lessee and comes to the conclusion that the lease in favour of the lessee was made prior to the creation of mortgage or the lease though made after the creation of mortgage is in accordance with the requirements of Section 65-A of the Transfer of Property Act and the lease was valid and binding on the mortgagee and the lease is yet to be determined, the Debts Recovery Tribunal will not have the power to restore possession of the secured asset to the lessee. In our considered opinion, therefore, there is no remedy available under Section 17 of the SARFAESI Act to the lessee to protect his lawful possession under a valid lease."

79. Before proceeding further, section 34 of the SARFAESI Act may be considered. It

ordains that :

"34. Civil court not to have jurisdiction.--No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)."

80. What the Supreme Court in Mardia Chemicals (supra) held on the limited extent

of the civil courts jurisdiction for receiving suits, may now be noticed. Paragraph

51 thereof reads as follows :

"51. However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absurd and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages.***"

81. One must remember that Harshad Govardhan Sondagar (supra) found that there

is no remedy available under section 17 of the SARFAESI Act to the lessee to

protect his lawful possession under a valid lease. The remedy available under

section 17 of the SARFAESI Act, thus, has to be regarded illusory for pre-

mortgage lessees for the reason that even though sufficient ground may have

been made out for the tribunal to direct restoration of possession of the secured

asset, such restoration could only be in favour of the borrower and not anyone

else.

82. If the grievance that such a pre-mortgage lessee brings before the tribunal under

section 17 is not capable of being determined by it, is the remedy by way of a suit

barred insofar as the lessee is concerned? Considering the language of section 34

read with sub-section (3) of section 17 together with paragraph 51 of Mardia

Chemicals (supra), I am inclined to the opinion that a suit instituted by such a

lessee against a secured creditor seeking to dispossess the former may not be

totally barred.

83. The decision in Harshad Govardhan Sondagar (supra) no doubt bears reflection

of a new line of judicial thought while dealing with the SARFAESI Act, hitherto

obscure and unexplored. Reading natural justice in section 14 of the SARFAESI

Act and requiring the CMM/DM to decide rights of parties is indeed a significant

development of law, which has to be taken note of by all Courts in view of Article

141 of the Constitution. However, the decision does throw up certain questions

(which need not be dilated here) that I perceive may require answers sooner or

later by the Supreme Court itself.

84. Be that as it may, it has been laid down in umpteen number of Supreme Court

decisions that a decision is an authority for what it decides and not what can

logically be deduced therefrom, and also that an additional or different fact may

make a world of difference between conclusions in two cases even when the same

principles are applied in each to similar facts.

85. I had the occasion to consider Harshad Govardhan Sondagar (supra) in M/s.

Vision Comptech Integrators Ltd. (supra) and was of the opinion that:

"15. To protect a bona fide lessee or tenant from being drowned in a situation of no remedy being available under the Act, the Supreme Court in Harshad Govardhan Sondagar (supra) has even read the requirement of complying with natural justice in Section 14 of the Act before an order is made by the relevant magistrate. The effect is that what was otherwise a non-adjudicatory process would now partake the character of a quasi-judicial proceeding."

This observation does not, in fact, aid the borrowers. The question that arose for

decision there was whether a section 17 application at the instance of a borrower

would lie before he lost possession of the secured asset. Paragraph 15 is not the

ratio of the decision but in the nature of a passing observation considering

Harshad Govardhan Sondagar (supra) which, as observed above, read natural

justice in section 14. However, there can be no doubt that the decision in

Harshad Govardhan Sondagar (supra) turns on its facts and has no application

when the person aggrieved is someone who is either not a pre-mortgage lessee or

a lessee to whom section 65-A of the TP Act applies.

86. Here, I am not concerned with any claim raised by a lessee who is in possession

of a secured asset in pursuance of a lease of the nature that fell for consideration

in Harshad Govardhan Sondagar (supra). The law laid down therein while dealing

with the case of a lessee can hardly apply in case of a borrower in possession of

the mortgaged property or a tenant/purchaser of a mortgaged property after

creation of mortgage. Most importantly, I have not found any declaration of law in

such decision that in every case while the CMM/DM is in seisin of a section 14

application, the borrower or the person in possession of a secured asset has to be

put on notice.

87. Concurring with the relevant observations in Kamal Jajoo (supra) and K.

Arockiyaraj (supra), the first question formulated above in paragraph 43 supra,

accordingly, is answered in the negative.

88. Turning attention to the second question, one needs to read sub-section (3) of

section 14 of the SARFAESI Act carefully. It says "no act ... done in pursuance of

this section shall be called in question ...". The question that is to be addressed is,

does "act" employed in sub-section (3) of section 14 include (i) "suitable orders for

the purpose of taking possession of the secured assets" passed under sub-section

(1), or (ii) the authorisation made by the CMM/DM under section (1-A), or (iii) the

"steps" and/or "force" employed in sub-section (2), or (iv) any one/two or all of

them?

89. The word "act" taking within its fold all the three situations, would flow from a

literal reading of section 14. If indeed that is the correct approach, no order for

taking possession passed by the CMM/DM could be challenged in an application

under section 17 before the specified forum. However, holding an order for taking

possession under section 14 as not amenable to challenge under section 17

would run contrary to the law laid down in the decisions in Kanaiyalal Lalchand

Sachdev (supra) and V. Noble Kumar (supra).

90. In Kanaiyalal Lalchand Sachdev (supra), a contention was raised on behalf of the

borrower that the High Court had erred in equating action under section 13 with

action under section 14 of the SARFAESI Act. Repelling such contention and

agreeing with the enunciation of law in the decision reported in (2009) 8 SCC 366

(Indian Overseas Bank v. Ashok Saw Mill), it was held by the Court as follows:

"22. We are in respectful agreement with the above enunciation of law on the point. It is manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4), and therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the Act itself contemplates an efficacious remedy for the borrower or any person affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT."

91. In V. Noble Kumar (supra) too, similar view has been expressed. Paragraph 27

reads as follows:

"27. The 'appeal' under Section 17 is available to the borrower against any measure taken under Section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under Section 13(4). Alienating the asset either by lease or sale, etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, Section 14 authorises the Magistrate only to take possession of the property and forward the asset along with the connected documents to the borrower (sic the secured creditor). Therefore, the borrower is always entitled to prefer an 'appeal' under Section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under Section 14. We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contemplated under Section 14 or without resorting to such a process obtaining of the possession of a secured asset is always a measure against which a remedy under Section 17 is available."

92. Kanaiyalal Lalchand Sachdev (supra) and V. Noble Kumar (supra) are authorities

for the proposition that an order under section 14 of the SARFAESI Act is open to

challenge under section 17. There can be no warrant for an assumption that the

Supreme Court in deciding the relevant civil appeals did not notice sub-section (3) of section 14. It does, however, appear from Harshad Govardhan Sondagar

(supra) that the parties did not place either Kanaiyalal Lalchand Sachdev (supra)

or V. Noble Kumar (supra) before the Court for its consideration.

93. My plain and literal reading of sub-section (3) i.e. an order passed under sub-

section (1) is also included in the verb "act", produces an absurd result and

looking to the object that the SARFAESI Act seeks to achieve, a contextual and

purposive rather than a strict literal approach to interpretation is necessary and

ought to be adopted while reading section 14. After all, it is the context in which

the words are used that is of significance and relevance for deciding an issue.

One cannot lose sight of the law authorising the CMM/DM to make a choice of

the subordinate officer to whom the power of taking possession may be delegated,

as well as the choice of the CMM/DM or the officer authorised to take such

"steps" or to employ such "force" as may be considered necessary on facts and in

the circumstances for taking possession. The phrase "in pursuance of" in sub-

section (3) assumes significance here. The dictionary meaning of the word

"pursuance", which follows from the verb "pursue", is 'carrying out or following

out' (see Chambers Dictionary). To my mind, what it suggests is that any act

aimed at taking possession [either in terms of section 14(1-A) or section 14(2)] in

pursuance of an order passed under section 14(1) would not be open to challenge

except before the High Court under Article 226 or before the Supreme Court

under Article 32. The CMM/DM has been given absolute discretion to choose his

subordinate officer, who would execute the order and take possession of the

secured asset. In terms of sub-section (2), the CMM/DM is also authorised to take or cause to be taken such steps and use or cause to be used such force as

may, in his opinion, be considered necessary. Take an instance, where even after

an order under section 14(1) is passed the resistance put up by the borrower

turns the situation violent and user of force to maintain orderliness and to take

possession of the secured asset leads to some casualty. Can the steps/force

taken/used by the officer authorised by the CMM/DM be challenged before any

ordinary court/tribunal? I am of the considered opinion that sub-section (3) of

section 14 should be read as intending to provide protection to persons acting in

good faith to give effect to an order passed under sub-section (1) without their

(reasonable) action being amenable to challenge before any court/tribunal, except

the Supreme Court/High Court, and can never be read as foreclosing a challenge

to such order, on merits, before the specified forum under section 17.

94. The decisions in IDBI Bank Limited (supra) and in Mansa Synthetics Pvt. Ltd.,

proceeding to lay down the law that an order under section 14(1) of the

SARFAESI Act is not amenable to a challenge under section 17 thereof by a

borrower, are contrary to what have been laid down in Kanaiyalal Lalchand

Sachdev (supra) and V. Noble Kumar (supra) and I respectfully differ with the

said decisions of the Gujarat High Court.

95. The second question in pargraph 43 is, accordingly, answered by holding that an

order under sub-section (1) of section 14 granting assistance to the secured

creditor can be challenged before the relevant tribunal under section 17 of the

SARFAESI Act in accordance with law.

96. A side question that emerges is, what is the remedy available to a secured

creditor if its application under section 14 stands rejected? The plain language of

section 17 of the SARFAESI Act does not permit a secured creditor to approach

the relevant tribunal thereunder. Such an order of rejection, necessarily, is open

to judicial review under Article 226 of the Constitution not because of sub-section

(3) of section 14 but because of the reason in the preceding sentence.

97. Moving on to answer the other question noted in paragraph 44 supra, I have been

shown Prakash Kaur (supra) by Mr. Saha. The said decision, apart from not

arising out of securitisation proceedings, does not lay down any law upon

considering arguments from the parties having the effect of a binding precedent.

It would appear that the suggestion of the learned senior counsel for the

appellant for a compromise was considered and the civil appeal disposed of with

certain directions in furtherance of such suggestion. The observation that banks

cannot employ goondas for taking possession by force was not made upon a

finding that goondas had in fact been employed by the appellant. It is trite that a

decision on any point that has not been argued does not constitute a binding

precedent. I would have certainly kept Prakash Kaur (supra) out of my

consideration but for the subsequent decisions of the Supreme Court and the

guidelines issued by the RBI following the observations made therein, which have

been placed before me by Mr. Rai.

98. None has disputed that the RBI guidelines are binding on the banks. In terms of

such guidelines, a borrower/occupant cannot be made to lose possession by

extra-legal means. That is the easy way of answering the question. However, I propose to answer the question bearing in mind the provisions of the SARFAESI

Act.

99. V. Noble Kumar (supra) in paragraph 36 has delineated how possession of a

secured asset could be taken by a secured creditor. Apart from the requirement

of preparation of notice in Appendix IV, affixation thereof and publication in

newspapers, the Rules provide no guidelines regarding the procedure for taking

possession. Therefore, section 13 and section 14 are the only relevant sections. It

is noteworthy that while sub-section (2) of section 14 permits the CMM/DM to

take or cause to be taken such steps and use or cause to be used such force as

may, in his opinion, be necessary, sub-section (4) of section 13 or any other sub-

section thereof does not authorise a secured creditor to barge into the secured

asset for taking its possession by force. I am reminded of the maxim expressio

unius est exclusio alterius, meaning whatever has not been included has by

implication been excluded. From this is derived the subsidiary rule that an

expressly laid down mode of doing something necessarily prohibits doing of that

thing in any other manner. If any authority is required, one may readily refer to

the decision reported in 1975 Supp SCC 1 (Indira Nehru Gandhi v. Raj Narain). It

is thus plain and clear that a secured creditor is not authorised to exert force

while taking possession and that is left only to the CMM/DM, as the case may be,

in the sound exercise of his discretion under sub-section (2) of section 14. Sundaram BNP Paribas Home Finance Ltd. (supra) expresses the same view. If on

a request made by the authorised officer to vacate the secured asset the borrower

or any person in occupation thereof does not voluntarily surrender possession, the secured creditor would have no other option but to seek the assistance of the

CMM/DM under section 14 in the manner prescribed.

100. The third question, thus, also stands answered.

101. Bearing in mind the conclusions that have been reached, I shall now proceed to

deal with the individual writ petitions.

W.P. 11828(W) of 2015 and W.P. 12210(W) of 2015

102. These two writ petitions are considered together since both relate to the same

secured asset, of which possession has been taken by the authorised officer of

the secured creditor (United Bank of India, Kolkata Branch).

103. In W.P. No. 11828(W) of 2015 dated June 9, 2015 (hereafter the former writ

petition) filed by Jawahar Singh (hereafter Jawahar), an order dated January 22,

2015 issued by the District Magistrate, 24 Parganas (South) is under challenge

basically on the ground that the application under section 14 of the SARFAESI

Act having been filed sometime in 2014, the order of the district magistrate ought

to have recorded his satisfaction in respect of the contents of the affidavit filed by

the secured creditor which is conspicuous by its absence; hence, there has been

an error of jurisdiction resulting in grave miscarriage of justice warranting

correction in judicial review.

104. It is the admitted case of Jawahar that he has been dispossessed from the

secured asset, which is a residential flat on the 1st floor of a multi-storied

building named 'Haripriya', within P.S. Kasba, District 24 Parganas (South).

105. There is no indication in the former writ petition of the secured asset having been

transferred in favour of any third party. The impression that one derives on reading thereof is that possession of the flat (secured asset) was with Jawahar

and that on the basis of the order impugned dated January 22, 2015 passed by

the District Magistrate, 24 Parganas (South), Jawahar was forcefully

dispossessed and the flat put under lock and key.

106. This writ petition cannot be considered in isolation without looking into W.P.

12210(W) of 2015 dated June 16, 2015 (hereafter the latter writ petition)

presented by Amar Nath Shaw (hereafter Amar).

107. Amar claims to have purchased from Jawahar by a registered deed of conveyance

dated December 15, 2011 the flat, of which possession was taken by the secured

creditor in terms of the order dated January 22, 2015 passed by the District

Magistrate, 24 Parganas (South) impugned in the former writ petition. It is the

further claim of Amar that after such purchase, his name has been mutated in

the records of the Kolkata Municipal Corporation and that he has also been

paying property tax in respect of such flat. It has also been claimed in paragraph

7 of the latter writ petition that while Amar was away from the flat on May 18,

2015, the secured creditor removed the padlock put by Amar on the main door

and replaced the same by another padlock and since then Amar has been forced

to stay away from his flat.

108. Having contacted Jawahar, he advanced excuses regarding the loan taken by him

from the bank and Amar was shocked and traumatised because he had invested

all his savings for purchase of the flat. Claiming himself to be a bona fide

purchaser of the flat for valuable consideration and contending that he was not a

party to the transaction between his vendor and the United Bank of India, and that the order passed by the district magistrate on the application under section

14 of the SARFAESI Act is not binding on him, a prayer has been made by Amar

for restoration of possession.

109. It is clear from the demand notice dated January 15, 2014 issued by the bank

under section 13(2) of the SARFAESI Act to Jawahar that the account had been

classified as non-performing asset on June 30, 2011 whereas the deed of

conveyance between the vendor (Jawahar) and the purchaser (Amar) was

executed on December 15, 2011. If at all, Amar is a purchaser of mortgaged

property.

110. Jawahar, it appears, had approached this Court earlier by challenging the action

of the bank to take recourse to section 13 on the ground that no mortgage had

been created in respect of the secured asset by deposit of title deed. His challenge

before the trial judge proved unsuccessful. An Hon'ble Division Bench of this

Court by its order dated September 9, 2014 while refusing to interfere with the

order passed by the learned trial judge dated August 25, 2014, noted that the

bank's attempt to sell off the secured asset did not prove fruitful. While granting

liberty to the bank to proceed in accordance with law for selling the flat in

question for recovering its dues by fresh auction, Jawahar was also granted the

liberty to approach the appropriate forum if he felt aggrieved by such auction to

be conducted by the bank.

111. Jawahar has now filed the former writ petition challenging the order dated

January 22, 2015, which is definitely a new cause of action. However, having

regard to the fact that the earlier challenge to the section 13 action at his instance had failed and the Hon'ble Division Bench having granted him liberty to

approach the appropriate forum after auction, no writ petition for any action

taken at the intermediate stage before auction would be maintainable. If a writ

petition at this stage is entertained, that would in effect be contrary to the order

of the Hon'ble Division Bench. The remedy of Jawahar lies in approaching the

appropriate forum, i.e. the tribunal under section 17 of the Act, against the order

dated January 22, 2015, in accordance with the order of the Hon'ble Division

Bench as well as according to law. No case for interference has thus been set up

by Jawahar. W.P. No. 11828(W) of 2015 stands dismissed, without order for

costs.

112. Insofar as the latter writ petition is concerned, Amar is not entitled to any relief

for restoration of possession as claimed by him. Admittedly, he is not a pre-

mortgage lessee/tenant but is the purchaser of a property which was mortgaged

by his vendor before the subject sale transaction. It may be so that the vendor

suppressed the fact of creation of mortgage but any purported defect in the order

of the district magistrate cannot lead to an order setting it aside on consideration

of the latter writ petition. Surprisingly, although the order dated January 22,

2015 is part of the annexures to the latter writ petition, no challenge thereto has

been levelled by Amar. As and when the bank availing the liberty granted by the

Hon'ble Division Bench issues fresh sale notice, Amar shall be at liberty to

pursue his remedy in accordance with law.

113. W.P. No. 12210(W) of 2015 stands disposed of, without order for costs.

W.P. 11993(W) of 2015

114. The order passed by the District Magistrate, 24 Parganas (North) dated March 20,

2015, on an application filed by the authorised officer of State Bank of India,

Nimpith Branch under section 14 of the SARFAESI Act is under challenge in this

writ petition dated June 2, 2015, presented on June 10 2015. Referring to the

affidavit that was filed by the authorised officer and recording his satisfaction in

regard to its contents, the district magistrate proceeded to direct the

Commissioner of Police, Barrackpore, North 24 Parganas to provide police

assistance to the secured creditors for taking possession of the secured asset.

115. It is pertinent to note that the borrower is one M/s. Aaron Sea Foods Pvt. Ltd. of

which Purna Chandra Giri (since deceased) was one of the directors. The three

petitioners claim to be his son, widow and daughter. The secured asset appears

to be an immovable property being land measuring 3 cottahs 5 chittacks 19 sq.

ft. within P. S. Khardah in the District of 24 Parganas (North).

116. The order impugned has been challenged basically on the ground that the same

is cryptic and without reasons.

117. The order impugned refers to the affidavit that was filed by the authorised officer,

Nimpith Branch and the requisite satisfaction of the district magistrate in regard

to its contents. The district magistrate cannot be assumed to have recorded such

satisfaction mechanically; he was not required to write a detailed order in respect

of such satisfaction. Only the factual correctness of the affidavit was required to

be examined, which to some extent is reflected in the impugned order.

118. I do not see any reason to interfere at this stage. As and when possession is

taken in terms of the order under section 14, the petitioners shall be at liberty to approach the tribunal under section 17 of the SARFAESI Act in accordance with

law. If approached, the tribunal shall be at liberty to examine the matter in depth

and to ascertain whether a case for exercise of power under sections 13 and 14

had indeed been set up or not and further as to whether taking of possession by

the authorised officer of the secured creditor has resulted in any grave

miscarriage of justice or not.

119. W.P. 11993(W) of 2015 stands dismissed without costs. Interim order, if any,

stands vacated.

120. Needless to observe, dismissal of this writ petition shall not influence the

tribunal, if approached, in any manner whatsoever.

W.P. 11787(W) of 2015

121. Challenge in this writ petition dated June 8, 2015 is to an order dated February

2, 2015 passed by the Chief Metropolitan Magistrate, Calcutta on an application

under section 14 of the SARFAESI Act filed by Andhra Bank. The order impugned

is not annexed to the writ petition; however, the same has been produced by Mr.

Mantha appearing for the bank and has been taken on record. It is revealed

therefrom that the bank was permitted to take physical possession of the secured

asset i.e. a flat in the building "Shyam Kunj" at 12/C, Lord Sinha Road, P.S.

Shakespeare Sarani, Kolkata with police help, if necessary.

122. The point that has been raised on behalf of the petitioner is that there was no

affidavit before the Chief Metropolitan Magistrate, Calcutta filed in terms of the first proviso to section 14. The other point is that the demand notice issued

under section 13(2) of the Act had been waived by the bank.

123. Mr. Mantha contended that an affidavit had been filed in terms of the statutory

mandate. I need not examine the point, since it is not in dispute that the

impugned order has been implemented by taking possession of the secured asset

on May 20, 2015. In my view, since possession has already been taken in

pursuance of the impugned order, remedy of the petitioner lies in questioning

such order before the tribunal under section 17 in terms of the observations

made above. W.P. 11787 (W) of 2015 is not entertained and it stands disposed of,

without order for costs.

124. Since possession has been taken over on May 20, 2015 and this writ petition was

presented on June 8, 2015, the period during which it was pending before this

Court shall be excluded for computing the period of limitation and the tribunal

may, in its discretion, grant the benefit of section 14 of the Limitation Act to the

petitioner, if it is approached within 10 (ten) days from date.

W.P. 5651W) of 2015

125. An order dated February 23, 2015 passed by the Debts Recovery Tribunal No.1,

Kolkata dismissing the petitioner's application under section 17 of the SARFAESI

Act is under challenge in this writ petition. The petitioner, claiming itself to be a

tenant under one Puspesh Baid, inter alia, felt aggrieved by orders dated

February 7, 2015 and February 11, 2015 of the Chief Metropolitan Magistrate,

Kolkata on an application under section 14 of the SARFAESI Act and an

application for modification of the order dated February 7, 2015 respectively, filed the by State Bank of India, SME Branch, Howrah. The tribunal held that the

question of tenancy can only be decided by the Chief Metropolitan Magistrate in

view of the decision in Harshad Govardhan Sondagar (supra) and that the section

17 application was not maintainable before it.

126. In my view, for the reasons indicated above, the tribunal fell in error in rejecting

the application of the petitioner under section 17 of the SARFAESI Act. Since I

have held that the decision in Harshad Govardhan Sondagar (supra) turns on its

facts, it has no application in the case at hand. Whether or not the petitioner is a

lawful tenant is to be decided by the tribunal itself and cannot be left to the

decision of the magistrate under section 14 of the Act, as erroneously observed by

the tribunal. The order dated February 23, 2015, accordingly stands set aside

with the result that application being no. SA/37/15 would stand revived. The

tribunal shall proceed to consider and dispose of such application in accordance

with law as early as possible.

127. W.P. No. 5651(W) of 2015 stands allowed to the extent indicated above, without

order for costs.

W.P. No. 10048(W) of 2015

128. The petitioner being the secured creditor had applied before the District

Magistrate, 24 Parganas (South), for taking possession of a secured asset being a

residential flat on the 1st floor of 'Soundarjya Apartment' along with car parking

space on the ground floor at Manik Bandopadhyay Sarani, P.S. Regent Park. By a

letter dated October 22, 2014, the district magistrate spurned the application on the ground that notice under section 13(2) was not properly served on the

borrower.

129. The respondents 6 and 7 (private respondents) have not entered appearance to

oppose the writ petition despite dispatch of copies thereof to them by speed post

on May 5, 2015.

130. Mr. Bhattacharya referred to page 28 of the writ petition, being a letter dated

March 25, 2008 written by a learned advocate engaged by the respondent no. 6

and contended that such letter clearly indicates receipt of notice under section

13(2) of the SARFAESI Act by the respondent no. 6. Based thereon, he contended

that the district magistrate erred in law in refusing to grant assistance under

section 14 on the ground of non-service of notice under section 13(2) of the Act

on the borrower.

131. In course of hearing, the relevant file leading to the order impugned dated

October 22, 2014 was called for. It appears from such file that the district

magistrate was approached with an application dated December 26, 2012 under

section 14 by the petitioner. Since the application was filed before January 15,

2013 i.e. the date on which the amendments under section 14 came into

operation, there was no necessity for the petitioner to file an affidavit of the

nature referred to in the first proviso to amended section 14. However, an

affidavit appears to be on record which, however, does not contain the letter

dated March 25, 2008 referred to above. Despite the letter dated March 25, 2008

not being part of the affidavit, notices dated February 1, 2008 under section 13(2)

of the Act addressed to the respondents 6 and 7 are part of such affidavit, which were sent by registered post with A.D. Although photocopies of some A.D. cards

are part of the affidavit, it cannot conclusively be said based thereon that

satisfaction could have been reached by the district magistrate of the section

13(2) notices having duly served on the respondents 6 and 7. Rejection of the

application perceiving that due notices were not served could have been a

possible conclusion.

132. I would have dismissed the writ petition if indeed the district magistrate had

come to such a conclusion on his own. However, it appears from the file that

some officer was delegated with the function of ascertaining the position from the

documents in the file and it was his conclusion that the application should be

rejected on the ground of proper notice under section 13(2) not being served, was

agreed to by the district magistrate. The district magistrate only signed the order

without applying his mind. This is not an appropriate manner of dealing with an

application under section 14 of the SARFAESI Act. What is more intriguing is

that the order of the district magistrate is contained in Memo dated October 22,

2014 but the draft of the order was checked by the officer who prepared it and

placed for the signature of the district magistrate on November 7, 2014,

whereafter the district magistrate signed on November 10, 2014. It is, therefore,

clear that the order that was sent to the petitioner was an antedated order.

133. In the result, the order impugned is set aside and W.P. 10048(W) of 2015 stands

allowed. The application under section 14 shall stand revived and considered

afresh in accordance with law by the district magistrate in the light of the

observations made above.

134. The file shall be returned to Mr. Sen.

135. Photocopy of this judgment and order duly signed by the Assistant Registrar

(Court) shall be retained with the records of all the writ petitions except W.P. No.

11828(W) of 2015.

Urgent photostat certified copy of this judgment, if applied for, be furnished to

the applicant within 4 days from date of putting in requisites therefor.

(DIPANKAR DATTA, J.)

Later:

Prayer for stay made by Mr. Kali, learned advocate for the petitioner in W.P. No.

11993 (W) of 2015 is considered and refused.

(DIPANKAR DATTA, J.)