Gravity Concrete Solutions Private Limited v. Jammu and Kashmir Bank Limited
2022-07-18
ALI MOHAMMAD MAGREY, MOHD.AKRAM CHOWDHARY
body2022
DigiLaw.ai
JUDGMENT : Magrey, J. 1. Impugned in this Petition, filed under Article 227 of the Constitution of India, is the Order dated 22nd of June, 2022 passed by the learned Chief Judicial Magistrate, Srinagar in the application filed under section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act of 2002') by the Authorized Officer of the Respondent-Bank, whereby the concerned Station House Officer (SHO) has been directed to take over the possession of the secured asset(s) falling within its jurisdiction. 2. Learned Counsel for the Petitioners submitted that the impugned Order dated 22nd of June, 2022 is bad in law inasmuch as the learned Magistrate has not taken into consideration the fact that the requisite statutory affidavit filed by the Respondent-Bank in terms of Section 14(b)(1) of the Act of 2002 is not in tune with the mandate of the Act itself. It is pleaded that the learned Magistrate, given the facts and circumstances of the case, could not have derived satisfaction in law for directing the Respondent-Bank to take over the possession of the secured asset for want of proper information. 3. Mr. Z.A. Shah, the learned Senior Counsel, appearing on behalf of the Respondent-Bank, who is on Caveat, submitted that the Order passed by the learned Magistrate is in tune with the mandate of the Act of2002. It is urged that the Respondent-Bank, upon realising the fact that the Petitioners have failed to repay the loan amount, through its Authorized Officer, filed an application in terms of Section 14 of the Act before the learned Magistrate for seeking his assistance in taking over the possession of the mortgaged property held as security with respect to the loan account(s) and that the learned Magistrate, vide the impugned Order, appointed and authorized the Station House Officer (SHO) concerned to take over the possession of the immoveable property/secured asset. 4. We have heard Mr. F.A. Wani, the learned Counsel appearing on behalf of the Petitioners; as well as Mr. Z.A. Shah, the learned Senior Counsel, for the Respondent-Bank. 5.
4. We have heard Mr. F.A. Wani, the learned Counsel appearing on behalf of the Petitioners; as well as Mr. Z.A. Shah, the learned Senior Counsel, for the Respondent-Bank. 5. At the very outset, what requires to be stated herein this case is that the Order which has been challenged by the Petitioners in this Petition has been passed by the learned Magistrate while exercising power under section 14 of the Act of 2002 and, therefore, it shall be advantageous to have a glance at the mandate of the said provision of law at the first instance, which reads, thus: "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 assets is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor: 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 there under 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 [within a period of thirty days from the date of application]: Provided also that if no order is passed by the Chief Metropolitan Magistrate or District Magistrate within the said period of thirty days for reasons beyond his control, he may, after recording reasons in writing for the same, pass the order within such further period but not exceeding in aggregate sixty days].
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]. [(1A) 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 [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". A bare perusal of the aforesaid provision of law clearly envisages that the application of the secured creditor, under this Section, has to be accompanied by an Affidavit duly affirmed by the Authorized Officer of the secured creditor and that, on receipt of the said Affidavit from the Authorized Officer, the concerned Magistrate has to satisfy itself qua the contents of the Affidavit and pass suitable orders for the purpose of taking possession of the secured assets. In the case in hand, the learned Magistrate has opined that the record/documents placed before it stood testimony to the fact that the Respondent-Bank has complied with the requirement of Section 13(2) of the Act of 2002, where after, upon failure of the Petitioners herein to liquidate the loan amount, the Respondent-Bank took recourse to proceedings under section 14 of the Act of 2002. The learned Magistrate has also observed that the Petitioners herein have availed the said loan facilities against the security of Mortgage and, having failed to maintain the loan accounts as per the terms and conditions of the sanction of the said loan facilities, as such the account of the Petitioners were declared as non-performing asset. In these circumstances, the satisfaction arrived at by the learned Chief Judicial Magistrate in passing the impugned Order cannot be said to be against the mandate of Section 14 of the Act of 2002.
In these circumstances, the satisfaction arrived at by the learned Chief Judicial Magistrate in passing the impugned Order cannot be said to be against the mandate of Section 14 of the Act of 2002. Furthermore, this Court, in a Petition filed under Article 227 of the Constitution of India, cannot embark into an enquiry with regard to the satisfaction arrived at by the learned Magistrate in proceeding ahead under section 14 of the Act. As per the mandate of the Act of 2002, the learned Magistrate is well authorized to assist the secured creditor/Respondent-Bank in taking the possession of the secured asset after following the procedure so prescribed in the Act of 2002 itself. 6. In the above background, we do not find any illegality or perversity in the impugned Order passed by the learned Chief Judicial Magistrate on the application filed by the Respondent-Bank under section 14 of the Act of 2002. Consequently, the instant Petition fails and shall stand dismissed accordingly. This Order, however, shall not preclude the Petitioners from having recourse to the remedy as may be available to them under the Act of 2002 for seeking redressal of their grievances. 7. This shall also discharge Caveat No. 1180/2022 accordingly.