Calcutta High Court
Jayanti Paul vs Hdfc Bank Limited And Anr on 3 October, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
OD-5
WPO/870/2024
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
JAYANTI PAUL.
-VERSUS-
HDFC BANK LIMITED AND ANR.
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date : 3rd October, 2024.
Appearance:
Mr. Jaydip Kar, Sr.Adv.
Mr. Arijit Bardhan, Adv.
Mr. Soumyajit Mishra, Adv.
Mr. Rishabh Dutta Gupta, Adv.
.... for the petitioner.
Mr. Sakya Sen, Adv.
...for the respondents.
The Court: The writ petition has been filed challenging the order
passed by the Chief Judicial Magistrate, Alipore, South 24 Parganas (In Misc.
Case No. 67 of 2024). An order was passed under Section 14 of the
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI Act, 2002).
The bailiff of the Court was appointed to take possession of the
secured assets, being the entire first, third and fourth floor of the building
measuring 1914 sq.ft. known as 'Jayanti', constructed upon a 5 cottah land
being premises no.2/5/1, Hindustan Road, P.S. Gariahat, Kolkata- 700 029.
Mr. Kar, learned senior Advocate for the petitioner submits that the
order was without jurisdiction. When the District Magistrate was available in
the district, the Chief Judicial Magistrate, Alipore did not have any authority
under the law to entertain such application. The next contention of Mr. Kar is
that the petitioner is a co-sharer in respect of portions of the floors which were
mortgaged to the bank. The original deed which was mortgaged, had
mentioned the right of the petitioner on the basis of a deed of partition. The
bank could not have initiated proceedings to take over the entire mortgaged
property thereby depriving the petitioner from her right to enjoy her portion of
the property, on the basis of a partition deed. According to Mr. Kar, the
mortgage of the property in which there was an existing co-sharer, without the
consent of the co-sharer, was invalid. Reliance has been placed on a letter of
the bank. The objection raised by the petitioner was considered by the bank.
The bank acknowledged that, the fact that the petitioner had a claim in the
mortgaged property had been concealed from the bank. The petitioner was
asked to approach the bank with necessary documents.
Mr. Sen, learned Advocate for the petitioner submits that in the
decision of the Hon'ble Apex Court (Authorised Officer, Indian Bank vs. D.
Visalakshi & Anr.), it was held that the Chief Judicial Magistrate was equally
competent to deal with an application moved by a secured creditor under
Section 14 of the 2002 Act. Accordingly, the decisions of the Kolkata, Bombay
and Madras High Courts were reversed and the decisions of the Kerala,
Karnataka, Allahabad and Andhra Pradesh High Court were upheld. Although
Mr. Kar submits that the issue as to whether in presence of a District
Magistrate in a particular district, the Chief Judicial Magistrate would still
have the power to proceed under Section 14 of the SARFAESI Act, 2002, was
not decided by the Hon'ble Apex Court. However, on a reading of the judgment
of the Hon'ble Apex Court, this Court is of the, prima facie, view that the
Hon'ble Apex Court had held that the Chief Judicial Magistrate in a non-
metropolitan area had the same powers as the Chief Metropolitan Magistrate in
the metropolitan areas. Such view of the Kerala, Karnataka and Allahabad
High Courts was upheld upon taking note of the liberal interpretation of the
expression "Chief Metropolitan Magistrate" which appears in Section 14 of the
said Act.
Under such circumstances, entertaining the writ petition on the
ground of lack of jurisdiction would not be proper as the decision of the Hon'ble
Apex Court would require thorough enquiry. The petitioner is at liberty to
challenge the order, in accordance with law, on all grounds including the
ground of jurisdiction of the CJM and also the steps taken by the bank. Being
an aggrieved person as contemplated under Section 17 of the Debts Recovery
Tribunal Act, the petitioner has an alternative remedy. Further question as to
whether the mortgage was valid, whether the bank should take possession of
the entire mortgaged property or allow the petitioner to enjoy her portion of the
mortgaged property, may be made before the Tribunal and the Tribunal will
decide such issues as interim prayers, before proceeding with the other issues,
in accordance with law.
Till November 15, 2024, the bank shall not take any coercive measure
insofar as, the petitioner's interest in the mortgaged property is concerned.
It is also made clear that this Court has not expressed any opinion as
regards the merits of the matter.
Accordingly, WPO/870/2024 is disposed of.
All parties are to act on the basis of a server copy of this order.
(SHAMPA SARKAR, J.)
TR/A/s.
