Kashi Gomti Samyut Gramin Bank And ... vs Chief Judicial Magistrate And 4 ...
2019 Latest Caselaw 1948 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 5
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 1760 of 2019
 

 
Petitioner :- Kashi Gomti Samyut Gramin Bank And Another
 
Respondent :- Chief Judicial Magistrate And 4 Others
 
Counsel for Petitioner :- Gyan Prakash Shrivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashok Kumar,J.

Heard Sri Gyan Prakash Shrivastava, learned counsel for the petitioners.

The instant petition has been filed by the petitioner Kashi Gomti Samyut Gramin Bank through its Regional Manager/ Authorized Officer by which the petitioner has challenged the order passed by the Chief Judicial Magistrate, Azamgarh in Case No. 3562 of 2019 dated 08.02.2019. By the order dated 08.02.2019 the petitioner's application for taking the possession of the immovable property against the loan sanctioned by the petitioner is rejected on the ground that the same is not maintainable.

The submission of the counsel for the petitioner is that the impugned order of the Chief Judicial Magistrate is illegal and bad, as similar power is vested with the Chief Judicial Magistrate as is vested in Metropolitan City with Chief Metropolitan Magistrate.

Learned counsel for the petitioner has submitted that Section 14 of the Securitisation And Reconstruction of Financial Assets And Enforcement of Security Interest (SARFAESI) Act, 2002 clearly provides the power with the Chief Metropolitan Magistrate or the District Magistrate to assist secured creditor in taking possession of secured assets.

For the convenience, the provision of Section 14 (1) and 14(2) of SARFAESI Act, 2002 are produced herein below:-

Section 14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.- (1) Whether the possession of any secured asset 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 asset, 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 assets 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.

(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 of 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.

Learned counsel for the petitioner has placed reliance of a Division Bench Judgment of this Court in the case of Abhishek Mishra Vs. State of U.P. & Others dated 08.09.2016 reported in 2016 AIR (Allahabad) 210.

In the case of Abhishek Mishra (supra) the controversy came up for consideration before this Court with respect of power of the Chief Judicial Magistrate exercising the jurisdiction in non-metropolitan area in exercise of powers conferred by Section 14 of the SARFAESI Act, 2002.

The question came up for consideration before the Division Bench of this Court was as to whether the Chief Judicial Magistrate exercising jurisdiction in non metropolitan area in exercise of powers conferred by Section 14 of the Act, 2002 can assist a secured creditor in taking possession of the secured asset and pass an order in favour of the secured creditor for the purpose of taking possession or control of any secured asset.

The Division Bench has held that a Chief Judicial Magistrate working, if transferred to a metropolitan area, will discharge the function as Chief Metropolitan Magistrate and similarly, if a Chief Metropolitan Magistrate working in a metropolitan area is transferred in a non-metropolitan area, he will discharge the function and duties as Chief Judicial Magistrate. The function and powers are the same and these words are interchangeably used as per their placement in a metropolitan or non-metropolitan area. One is synonymous for the other dependent upon the area under his transfer.

A reading of the above provisions makes it clear that powers of Chief Judicial Magistrate in non-metropolitan area and powers of Chief Metropolitan Magistrate working in metropolitan area, are one and the same, their functions are same and one is synonymous to other. The only difference is that former one exercises jurisdiction over non-metropolitan areas while the later exercises jurisdiction in metropolitan area only. The nomenclature gets changed depending upon whether the area has been declared as a metropolitan area.

The Division Bench in its judgment has considered the submission of respective parties and the intention of the Legislature. The Division Bench has observed that the intention of the Legislature, depending upon the objects for which enactment has been made, the Courts can resort to historical, contextual and purposive interpretation leaving aside the textual interpretation. Purposive interpretation has been described by Fransis Bennion in his book 'Statutory Interpretation' as under.

"A purposive construction of an enactment is one which gives effect to the legislative purpose by-

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose, or

(b) applying a strained meaning where the literal meaning is not in accordance with legislative purpose.

Hon'ble Apex Court in the case of M/s. Girdhari Lal & Sons Vs. Balbir Nath Mathur & Ors., AIR 1986 SC 1499, while explaining the principles of interpretation of statutes, has held as follows:-

"The foremost task of a court, as we conceive it, in the Interpretation of Statutes, is to find out the intention of the legislature. Of course, where words are clear and unambiguous no question of construction may arise. Such words ordinarily speak for themselves. Since the words must have spoken as clearly to legislators as to judges, lt may be safely presumed that the legislature intended what the words plainly say. This is the real basis of the so called golden rule of construction that where the words of statutes are plain and unambiguous effect must be given to them. A court should give effect to plain words, not because there is any charm or magic in the plainness of such words but because plain words may be expected to convey plainly the intention of the Legislature to other as well as judges. Intention of the legislature and not the words is paramount. Even where the words of statutes appear to be prima facie clear and unambiguous it may some times be possible that the plain meaning of the words does not convey and may even defeat the intention of the legislature; in such cases there is no reason why the true intention of the legislature, if it can be determined, clearly by other means, should not be given effect. Words are meant to serve and not to govern and we are not to add the tyranny of words to the other tyrannies of the world.

Parliamentary intention may be gathered from several sources. First, of course, it must be gathered from the statute itself, next from the preamble to the statute, next from the Statement of Objects and Reasons, thereafter from Parliamentary debates, reports of Committees and Commissions which preceded the legislation and finally from all legitimate and admissible sources from where there may be light. Regard must be had to legislative history too.

Once Parliamentary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the court to give the statute a purposeful or a functional interpretation. this is what is meant when, for example, it is said that measures aimed at social amelioration should receive liberal or beneficent construction. Again, the words of a statute may not be designed to meet the several uncontemplated forensic situations that may arise. The draftsman may have designed his words to meet what Lord Simon of Glaisdale calls the 'primary situation'. It will then become necessary for the court to impute an intention to Parliament in regard to 'secondary situations'. Such 'secondary intention' may be imputed in relation to a secondary situation so as to best serve the same purpose as the primary statutory intention does in relation to a primary situation.

So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anamoly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so-called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing, the written word if necessary."

The Division Bench has further considered the settled principles of interpretation of statutes and arrived at a conclusion that the answer to the issue is nomenclature 'Chief Metropolitan Magistrate' used by legislature is Section 14 of the Act includes Chief Judicial Magistrate functioning in non-metropolitan area and shall have jurisdiction to entertain an application made under Section 14 of the SARFAESI Act, 2002.

The Division Bench has held as follows:-

"In our considered opinion, there is no casus omissus. The interpretation given by us does not amount to reading anything in the provision, which the legislature never intended to, nor the interpretation given by us, in any way, defeats the intention of the Legislature. It is a purposive interpretation to advance the true intention of the legislature for enacting the Act, viz. speedy recovery of bad debts of the banks and financial institutions declared as NPAs. On the contrary, adopting the principles of literal construction in interpretation of the word 'Chief Metropolitan Magistrate' would not only defeat the object and purpose of legislation but would lead to manifestly anomalous result which could not have been intended by the legislature. As per Lord Reid in the case of Luke Vs. IRC, 1966 AC 557, where to apply words would literally defeat the obvious intention of the legislation and produce a wholly unreasonable result, we must do some violence to the words and so achieve that obvious intention and produce a rational construction."

In view of the above decision of this Court, I find no reasons in the impugned order passed by the Chief Judicial Magistrate, Azamgarh rejecting the application filed under Section 14(1) of the SARFAESI Act, 2002 therefore the order dated 08.02.2019 is set aside and the Chief Judicial Magistrate, Azamgarh is hereby directed to consider the petitioner's application filed under Section 14(1) of the SARFAESI Act, 2002 and dispose of the same strictly in accordance with law by considering the claim of the petitioner positively within a period of one month from the date of production of certified copy of this order.

With these observations, the petition is disposed of.

Order Date :- 29.3.2019

SK Srivastava