Gujarat High Court
M/S. Vasanti Share Brokers Ltd. Through ... vs State Of Gujarat on 9 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12028 of 2025
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M/S. VASANTI SHARE BROKERS LTD. THROUGH ASHOK RUNGTA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ARJUN R SHETH(7589) for the Applicant(s) No. 1
MR TARAK DAMANI(6089) for the Respondent(s) No. 2
MR MANAN MAHETA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 09/10/2025
ORAL ORDER
[1.0] By way of this petition under Article 227 of the Constitution of
India read with Section 528 of the BNSS, the petitioner has prayed for
the following relief:
"Pass appropriate order quashing and setting aside the impugned
order dated 11.07.2025 passed in unnumbered Criminal Misc.
Application alongwith an administrative order dated 07.08.2025
passed by the learned Chief Metropolitan Magistrate, Ahmedabad
amending and modifying the order dated 29.12.2016 passed in
CRMA J No.100425 of 2025 and consequential steps thereto
(Annexure A) and further be pleased to quash and set aside
impugned notice dated 11.08.2025 issued by the Court
Commissioner being one Mr. F. M. Zhina seeking to take
possession of the property by relying upon the order dated
07.08.2025 (Annexure C);"
[2.0] The facts leading to filing of the present petition are as follows:
[2.1] The petitioner for the purpose of securing the financial facility
by way of short Term Revolving Loan Facility / Bank Guarantee
approached respondent No.2 Bank, which was sanctioned by the
Respondent No.2 for which the petitioner created security interest by
way of deposit of the title deeds of the property. It is the case of
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respondent No.2 that since the petitioner defaulted in repayment, a
Demand Notice dated 19.08.2014 was issued under Section 13(2) of
the SARFAESI Act for an amount of Rs.3,65,94,902.83/- by respondent
No.2 Bank. The petitioner through its advocate replied to the said
demand notice on 28.09.2014 pursuant to which respondent No.2
issued rejoinder letter dated 09.10.2024.
[2.2] It is the case of the petitioner that on 28.09.2015, possession
notice under Section 13(4) of the SARFAESI Act came to be issued by
respondent No.2 Bank and thereafter, on or about 28.12.2015, the
respondent No.2 Bank filed CR.MA No.425/2015 before the learned
Chief Metropolitan Magistrate, Ahmedabad under Section 14 of the
SARFAESI Act seeking possession of the property in question wherein
the learned Magistrate vide its order dated 24.11.2016 was pleased to
authorize respondent No.2 Bank to take over the possession. The said
order was challenged by the petitioner before this Court by way of
filing Special Criminal Application No.9249/2016 and the coordinate
Bench of this Court vide order dated 13.12.2016 has quashed and set
aside the order dated 24.11.2016 and case was remitted back to the
learned Magistrate for fresh consideration.
[2.3] The learned Chief Metropolitan Magistrate issued fresh order
dated 29.12.2016 appointing Shri P.M. Garg as authorised person
under Section 14 of the SARFAESI Act to take possession of the
property of the petitioner and to hand over the same to respondent
No.2 Bank within 30 days after passing of the order dated 29.12.2016
and also directed to file the compliance report. That, the said judicial
order got expired and no extension was sought at any point of time
for compliance of the order dated 29.12.2016. Despite the expiry of
the said order, respondent No.2 Bank after inordinate and
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unexplained delay filed an application dated 11.07.2025 before the
learned Chief Metropolitan Magistrate seeking condonation of huge
delay of more than eight years, which came to be condoned.
Thereafter, the learned Chief Metropolitan Magistrate after coming to
know that Mr. P.M. Garg was permanently transferred to this Court,
vide its administrative order dated 07.08.2025 was pleased to appoint
Mr. F.M. Zhina, Assistant Superintendent of Court as Court
Commissioner to take possession of the property specified in the
impugned orders and to act in accordance with the order dated
29.12.2016.
[2.4] Pursuant to the said order, Mr. F.M. Zhina in his capacity as
Court Commissioner issued a notice dated 11.08.2025 wherein relying
upon the order dated 07.08.2025 for taking possession of the
property. The said notice dated 11.08.2025 is sticked on the
conspicuous part of the property and the petitioner has never
received the same physically. Hence, present petition is filed.
[3.0] Learned advocate for the petitioner has submitted that the
impugned order passed by the learned Magistrate is illegal and
without application of mind and is passed without any jurisdiction.
Further, the learned Magistrate has exercised jurisdiction under
Section 14 of the SARFAESI Act and passed an order thereunder and
disposed of the said matter with directions and therefore, learned
Magistrate becomes functus officio and ceases to have any authority
to further issue directions, clarifications or to take subsequent steps
in alteration, modification or continuation of the said order even if
there was an apparent error. Further, the scheme of Section 14 of the
SARFAESI Act vests in the District Magistrate/ Chief Metropolitan
Magistrate only for ministerial step including the limited
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administrative and non-adjudicatory function of rendering assistance
to the secured creditor for taking possession of the secured assets,
without any adjudicatory role. Hence, after passing of the order, the
Magistrate could not have assumed jurisdiction to appoint any other
officer or pass subsequent communications, as the Magistrate's
authority has already exhausted and any grievance in relation to
passing of the order cannot be made before the District Magistrate/
Chief Metropolitan Magistrate. Further, under Section 14 of the
SARFAESI Act, the role of the District Magistrate/Chief Metropolitan
Magistrate is limited to providing assistance to the secured creditor in
taking possession of the secured assets and is not empowered with
any adjudicatory powers under the Act, hence entertaining an
application regarding delay without any affidavit of Respondent no. 2,
which requires application of judicial mind and allowing the same
which otherwise is impermissible under law amounts to jurisdictional
error. He has further submitted that the learned Magistrate vide its
administrative order has modified or altered the judicial order earlier
passed under an application filed under Section 14 of the SARFAESI
Act.
[3.1] He has further submitted that order dated 11.07.2025 is bad in
law and is therefore ex-facie without jurisdiction, contrary to the
legislative intent and scope of Section 14 of SARFAESI Act as section
14 of the SARFAESI Act mandates strict adherence to the statutory
timelines prescribed therein, whereby the Chief Metropolitan
Magistrate/District Magistrate is duty-bound to pass appropriate
orders for taking possession of the secured assets within thirty (30)
days from the date of application, extendable up to a maximum of
sixty (60) days. The legislative intent underlying this special enactment
is that the process be summary and time-bound in nature, treating
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time as of the essence and restrict any deviation from the same.
Further, any lapse, delay, or inaction either in passing the requisite
order or in executing possession thereof defeats the very object of
the enactment and operates to the grave prejudice of the borrower,
thereby rendering such delayed action dehors the scheme and scope
of the SARFAESI Act and therefore, the learned Chief Metropolitan
Magistrate ought not to have passed any orders after the timeline of
implementing the said order is expired. The respondent No.2 cannot
be permitted to deposit the process fee after such inordinate and
unexplained delay as the said judicial order has already expired after
30 days. Further, the Respondent No.2 bank is guilty of inordinate
delay in seeking execution of the order under Section 14 of the
SARFAESI Act whereas it is palpable in clear eyes that even after
passing of the order under Section 14 of the SARFAESI Act on
29.12.2016 the Respondent No.2 bank simply sat tight over their
alleged right without any reason whatsoever and thus due to the fault
of their own there in no equity of granting any relief in favour of the
Respondent No. 2 bank. Hence, he has requested to allow the present
petition.
[3.2] Learned advocate for the petitioner has relied on the following
decisions in support of his averments made herein above.
(i) Prime Co-operative Bank Ltd. v. District Magistrate / Chief
Metropolitan Magistrate [2009 SCC OnLine Guj 10656]
(ii) Union Bank of India v. The State of Maharashtra and Others
[Bombay High Court in Writ Petition No.4033 of 2010]
(iii) Gujarat Industrial Co-op Bank Ltd. v. District Magistrate [SCA
No.9710/2009, Gujarat High Court]
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(iv) Asset Reconstruction Company (India) Ltd. vs. State of Haryana
& Ors. [High Court of P & H, CWP No.16366 of 2016]
(v) Patel Narshi Thakershi and others v. Pradyumansinghji
Arjunsingh [MANU/SC/0433/1970]
(vi) Shriram Housing Finance Ltd. v. State of Haryana and Others
[High Court of P & H, CWP/3187/2019]
(vii) XXX v. The State of Kerala and Others [Live Law 2021 SC 684]
(viii) Hari Singh Mann v. Harbhajan Singh Bajwa and Others [(2001) 1
SCC 169]
(ix) Bank of India v. Pankaj Dilipbhai Hemnani and Others [2007 SCC
OnLine Guj 61]
(x) Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC
1]
(xi) Kishore Kumar Khaitan and Another v. Praveen Kumar Singh
[(2006)3 SCC 313]
Relying on aforesaid decisions, he has requested to allow the
present petition.
[4.0] Learned advocate Mr. Tarak Damani appearing for respondent
No.2 has submitted that writ petition under Article 227 of the
Constitution of India is not maintainable. Herein, the petitioner has
challenged the order passed by the learned Chief Judicial Magistrate
under Section 14 of the SARFAESI Act and he has relied on the
decision of the Andhra Pradesh High Court in the case of Maruti
Minerals Pvt. Ltd. vs. Union of India reported in 2021 SCC OnLine
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(AP) 231. Further, he has submitted that even writ petition is not
maintainable against any order passed under the provisions of the
SARFAESI Act and relied on the decision of Hon'ble Supreme Court in
the case of M/s. Phoenix ARC Pvt. Ltd. vs. V. Ganesh Murthy & Anr.
reported in (2022) 5 SCC 345 as well as in the case of State Bank of
Travancore vs. Mathew K.C. reported in (2018) 3 SCC 85. He has
further submitted that the powers exercised by the learned
Magistrate is ministerial in nature and writ is also not maintainable. In
this regard, he has relied on the decision of Hon'ble Supreme Court in
the case of Balakrishna Rama Tarle vs. Phoenix ARC Pvt. Ltd.
reported in (2023) 1 SCC 662 as well as R.D. Jain & Co. vs. Capital
First Ltd. reported in (2023)1 SCC 675. He has further submitted that
respondent No.2 is a party party and not State and therefore, even on
that count also, writ is not maintainable. In this regard, he has relied
on the decision of the Hon'ble Supreme Court in the case of Phoenix
ARC Pvt. Ltd. (Supra) as well as the decision of Bombay High Court in
the case of Vasanti Commodities Ltd. vs. HDFC Bank Ltd. He has
further submitted that petitioner has failed to show any prejudice
caused to him due to such order as on one or another pretext, on the
ground of settlement, petitioner has killed the time and when he is
able to kill the time and failed to make the payment, as a last resort,
respondent No.2 is compelled to initiate further proceeding. Hence,
there is no irregularity or any error is committed by the learned Chief
Judicial Magistrate. Hence, he has requested to dismiss the present
petition.
[5.0] Heard learned advocate appearing for the petitioner and
learned APP appearing for respondent No.1 - State of Gujarat.
[6.0] Learned advocate for the petitioner has raised the grievance
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that the learned Chief Judicial Magistrate has passed impugned order
without jurisdiction and has not followed the mandatory provisions.
After passing the impugned order, the learned Magistrate has
reviewed the order and appointed the Court Commissioner which is
not permissible under the CrPC and has further submitted that after
passage of 8 years, 5 months and 12 days, permitted to deposit the
amount, accepted the amount of court commission and condoned the
delay. The said order is bad in law. Learned advocate for the petitioner
has failed to show as to what prejudice is caused to the petitioner.
[6.1] It is needless to say that order passed under section 14 of the
SARFAESI Act is not questionable and said order is ministerial in
nature and not quasi judicial in nature. The provision of Section 14(1A)
of the SARFAESI Act read as under:
"14(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."
The SARFAESI Act has been enacted for the benefit of banks
and financial institutions with a view to ensure speedy recovery of
public dues by enabling them to take physical possession of secured
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assets and auction the same, without intervention of any Court of law.
[6.2] Section 14 of the SARFAESI Act confers power upon the secured
creditor to seek assistance from the Chief Metropolitan Magistrate,
the Chief Judicial Magistrate, or the District Magistrate, as the case
may be, for obtaining possession and control of the secured assets. As
per Section 14(1-A) of the Act, the designated authority is empowered
to authorize any officer subordinate to him to take possession of the
secured assets. The Hon'ble Apex Court has also settled the issue that
it would be permissible to appoint an advocate as a "Court
Commissioner" for the purpose of taking possession of the secured
assets and handing over the same to the secured creditor. In NKGSB
Cooperative Bank Limited v. Subir Chakravarty, (2022) 10 SCC 286,
the Hon'ble Supreme Court held that an advocate is an officer of the
Court and, thus, subordinate to the CJM/CMM/DM. Accordingly, it
would be open to the CJM/CMM/DM to appoint such a Commissioner
to assist in the execution of an order passed under Section 14(1A) of
the Act.
[6.3] While exercising power under Section 14 of the SARFAESI Act,
the learned Magistrate has no jurisdiction to adjudicate disputes
between the secured creditor and the debtor. The functions and
powers under Section 14 are ministerial in nature, not adjudicatory.
This position has been reiterated by the Hon'ble Supreme Court in
Balkrishna Rama Tarle (Dead) through LRs & Anr. v. Phoenix ARC
Private Limited & Ors., (2023) 1 SCC 662, and in Kotak Mahindra
Bank Limited v. Girnar Corrugators Pvt. Ltd., MANU/SC/0013/2023.
[6.4] Further, as per Section 17 of the SARFAESI Act, any person
aggrieved by the measures taken under Section 14 must challenge the
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same before the Debts Recovery Tribunal. No remedy is available
under Section 528 of the Cr.P.C. In this regard, reference may be made
to the judgments of the Hon'ble Apex Court in: (i) Phoenix ARC Pvt.
Ltd. v. Ganesh Murthy, 2023 LiveLaw (SC) 513; (ii) Authorized
Officer, Indian Bank v. D. Visalakshi, MANU/SC/1303/2019; (iii)
South Indian Bank Ltd. v. Naveen Mathew Philip; (iv) Phoenix ARC
Pvt. Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345; (v) State
Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85; (vi) United
Bank of India v. Satyawati Tondon, (2010) 8 SCC 110.
[7.0] This is not a case wherein the petitioner has paid the amount
during 8 years and though he has paid the amount, any proceeding
initiated or even otherwise failed to show any prejudice caused to him.
Merely because in the letter issued by the Court Commissioner, no
specific date is mentioned and rather to mention specific date and
time for taking the possession, Court Commissioner has stated any 2 nd
or 4th Saturday. Such evasive date or time is not permissible.
[8.0] Further, present petition is filed under the supervisory
jurisdiction of Article 227 of the Constitution of India. Herein, learned
advocate for the petitioner has failed to show any error in the
impugned order as the then learned Chief Judicial Magistrate has
already been pleased to pass an order but under the pretext of
settlement talks, the petitioner has killed time and hence, respondent
No.2 herein - secured creditor was constrained to approach the
learned Chief Judicial Magistrate and seek permission to deposit the
amount and learned CJM, Ahmedabad City by imposing the cost of
Rs.1000/- has been pleased to give permission to deposit the said
amount on 11.07.2025. The said amount is accepted by the
Superintendent of Legal Services Committee of the Court of Chief
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Judicial Magistrate, Ahmedabad City. Learned advocate for the
petitioner has raised a grievance that the application is tendered on
16.07.2025 and order is passed on 11.07.2025. It is needless to say
that on document at Annexure-A, the date mentioned is 11.07.2025
and tendered date is mentioned as 16.07.2025 but subsequent
proceedings clearly reveal that learned Chief Judicial Magistrate has
been pleased to pass an order on 11.07.2025 and at places, date is
mentioned as 11.07.2025 and learned CJM has bene pleased to pass
an order also on 11.07.2025. It is needless to say that the record of
Court is sacrosanct. Pursuant to the said order, after accepting the said
amount, as Court Commissioner Mr. P.M. Garg was already appointed
and he was working on deputation and subsequently his services came
to be spared for parent establishment i.e. Gujarat High Court and
hence, only name of Court Commissioner was changed and instead of
Mr. P.M. Garg, Mr. F.M. Zhina was appointed as Court Commissioner.
Mere change in name of Court Commissioner does not mean that
learned Chief Judicial Magistrate has altered the order passed under
Section 14 of the SARFAESI Act for taking the possession of the
secured assets. Such order is nothing but a cosmetic change and
appointment of Court Commissioner is permissible.
[8.1] Further, the very object of appointing a Court Commissioner is
recognized under the Cr.P.C., BNSS, as well as the Code of Civil
Procedure, wherein the Court is empowered to appoint a
Commissioner to carry out a variety of ministerial and administrative
duties. The concept of appointment of a Court Commissioner is,
therefore, not alien but a customary and recognized feature under
procedural law. Accordingly, the argument canvassed by the learned
advocate for the petitioner is devoid of merit and not acceptable.
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[8.2] It is also not mandatory for the Court to issue any writ or
exercise its powers under Articles 226 and 227 of the Constitution of
India in cases involving minor procedural defects. In this regard,
reference may be made to Anurag Bhatnagar v. State of NCT of Delhi
reported in 2025 INSC 895. In the present case, no substantial
prejudice or irregularity is found in the impugned order and the
petitioner has failed to demonstrate any any error in the impugned
order.
[9.0] This Court is of the considered view that, though an alternate
remedy is available under Section 17 of the SARFAESI Act, the
petitioner has directly approached this Court only with a view to
thwart the recovery proceedings initiated by respondent No.2. It is
well settled that when an efficacious alternate remedy is available, the
writ petition is ordinarily not maintainable. In this regard, reference
may be made to the decision of the Hon'ble Supreme Court in United
Bank of India v. Satyawati Tondon & Ors. reported in (2010) 8 SCC
110, wherein it has been categorically held that the High Courts
should not ordinarily entertain a petition under Article 226 of the
Constitution of India if an effective remedy is available under the
statute. The petitioner failed to point out or show any prejudice cause
to him due to mere change of name of Court Commissioner and no any
error of law could be said to have been committed by the learned
Chief Judicial Magistrate while passing the impugned order.
[10.0] So far as authorities relied on by the learned advocate for
the petitioner are concerned, considering the decision of the Hon'ble
Apex Court in the case of Parasa Raja Manikyala Rao And Anr vs
State Of A.P reported in AIR 2004 SC 132, each case depends on its
own facts and a close similarity between one case and another is not
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enough to warrant like treatment because a significant detail may
alter the entire aspect. In deciding such cases, one should avoid the
temptation to decide cases (as said by Cordozo) by matching the
colour of one case against the colour of another. To decide therefore
on which side of the line a case falls, the broad resemblance to
another case is not at all decisive. In this regard, reference is required
to be made to the decision of the Hon'ble Supreme Court in the case
of Rashmi Metaliks Ltd. vs. Kolkata Metropolitan Development
Authority reported in (2013) 10 SCC 95. Hence, in the peculiar facts
of the case on hand and for the reasons discussed hereinabove, the
authorities relied on by the learned advocate for the petitioner would
not avail any assistance to the petitioner.
[11.0] In aforesaid conspectus, there being no error of law in the
impugned order, which calls for any interference by this Court,
present petition stands dismissed. On the count of fairness and as the
Court Commissioner has not given any specific date or time, Court
Commissioner is directed to fix the specific date and time and to
inform the petitioner about the appointed date prior to taking the
possession or initiating any proceeding.
(HASMUKH D. SUTHAR, J.)
Ajay
