Gujarat High Court
Hi Tech Sweet Water Technologies ... vs Bank Of Baroda Thro Its Authorized ... on 9 October, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2611 of 2025
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HI-TECH SWEET WATER TECHNOLOGIES PRIVATE LIMITED THRO
VIJAYKUMAR SHOBHALAL SHAH
Versus
BANK OF BARODA THRO ITS AUTHORIZED OFFICER & ANR.
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Appearance:
ARJUN R SHETH(7589) for the Applicant(s) No. 1
MS NALINI S LODHA(2128) for the Respondent(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 09/10/2025
ORAL ORDER
1. By way of this petition, the petitioner has prayed to quash and set
aside the impugned order dated 09.01.2025 passed by learned Principal
Senior Civil Judge and Additional Chief Judicial Magistrate, Bardoli, in
Criminal Misc. Application No. 468 of 2024 and further orders dated
22.01.2025 and 31.01.2025 passed in Criminal Misc. Application
No.468/2024 along with impugned notice dated 07.02.2025 issued in the
name of Court Commissioner.
2. Heard learned advocates for the respective parties.
3. The learned advocate for the petitioner submits that the impugned
orders passed by the learned Court below is without jurisdiction, illegal and
without application of mind; that the learned Court below does not have
power to appoint a Court Commissioner under Section 14(1A) of the
SARFAESI Act, 2002; learned Court below can authorize any subordinate to
take possession of the assets, but cannot appoint court Commissioner and
therefore, committed error of jurisdiction; when the clerks as mentioned in
the order is appointed as Court Commissioner, they ceases to be
subordinate officers of learned Principal Civil Judge and Additional Chief
Judicial Magistrate and there is no provision of appointment of Court
Commissioner in either BNSS, 2023 or in the SARFAESI Act, 2002.
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4. Learned advocate for the petitioner submits that the petitioner being
a Company borrowed cash credit facilities and the same is granted by the
respondent No.1 Bank from time to time. Thereafter, on 19.08.2024, the
respondent No.1 issued notice under Section 13(2) of the Act, 2002 and
further proceeded to take measure under the Act, 2002. Also, the
respondent No.1 Bank filed an application on12.12.2024 under Section 14 of
the Act, for taking possession of the mortgaged assets of the petitioner as
stated in the application before the learned Civil Court, Bardoli in Criminal
Misc. Application No.468/2024.
5. Learned counsel for the petitioner has also relied on the decision of
the Hon'ble Apex Court in case of NKGSB Cooperative Bank Ltd. Vs. Subir
Chakravarty, (2022) 10 SCC 286 and Standard Chartered Bank Vs. Noble
Kumar, 2013 (9) SCC 620, and submitted that, the learned Magistrate has
appointed clerks as Court commissioners which is not permissible. Hence,
the order passed by learned Court below is bad in law and the same is
required to be quashed and set aside.
6. The learned advocate for respondent Bank has opposed the petition and
submitted that respondent No. 1 is a banking financial institution, which had
filed an application under Section 14 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (hereinafter referred to as "SARFAESI Act") before the learned Chief
Judicial Magistrate, Bardoli. The said application came to be placed before
the Court of Additional Chief Judicial Magistrate and Principal Senior Civil
Judge, Bardoli, wherein the impugned order was passed in the capacity of
Chief Judicial Magistrate.
7. Learned counsel for respondent bank has submitted that the Court
Commissioner appointed by the learned Magistrate is subordinate to him.
Even in para 38 of NKGSB Cooperative Bank Ltd. (supra), it is clearly stated
that if any peon or clerk is unable to handle the situation, then such
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appointment is not permissible. Here this is not a case where persons
appointed are unable to handle the situation. Further, the petition is also
not maintainable under Article 227 of the Constitution and only with a view
to protract or stall the recover proceedings, it is filed. Hence, decision of
NKGSB Cooperative Bank Ltd. (supra) would not helpful to the petitioner.
8. The learned APP has adopted the submissions of the learned
advocate for respondent bank and further submitted that the SARFAESI Act
provides a complete code and a separate mechanism. Any order passed
under Section 14 of the Act is required to be challenged before the Debt
Recovery Tribunal under Section 17 of the Act. Hence, the present petition
is not maintainable and deserves to be dismissed.
9. Having heard the learned advocates for the respective parties,
perused the record, and considered the arguments canvassed by the
advocates, it appears that the learned advocate for the petitioner has
challenged the order passed by learned Additional Chief Judicial Magistrate,
Bardoli, contending that the said order is without jurisdiction. It is further
submitted that the learned Court has erroneously appointed clerks as
"Court Commissioners" under Section 14(1A) of the Act, on the ground that
such appointment of clerks is also impermissibleThe very concept to appoint
Commissioner is alien to the scheme of the Act.
10. 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, 2002 has been enacted for the benefit of banks
and financial institutions with a view to ensuring speedy recovery of public
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dues by enabling them to take physical possession of secured assets and
auction the same, without intervention of any Court of law.
11. Section 14 of the 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.
12. Insofar as the appointment of clerks is concerned, the term "Court
Commissioner" has been used, and even in the order dated 09.01.2025, the
Court has appointed Court Commissioners. However, the concept of
appointing a Court Commissioner is not explicitly provided for under the
Cr.P.C. Essentially, a person has been appointed on behalf of the Court. The
learned counsel for the petitioner has raised a technical issue, arguing that
'clerks' have been appointed as Court Commissioners. It is needless to say
that, considering the large volume of work, 13 individuals have been
appointed as Court Commissioners. Upon the establishment of Civil Courts
and Additional District Courts, and after the amendment of the Gujarat
Subordinate Staff Appointment and Recruitment Rules, the designation of
"clerk" has not been defined and work assigned accordingly to subordinate
staff. The term "clerk" is used here to indicate a class of employees in
common parlance. All these individuals are employed under the
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establishment of the courts. These appointments have been made by the
concerned Magistrate on behalf of the Chief Judicial Magistrate
(CJM)/ACJM, and the persons so appointed are subordinate to him.
Therefore, it is clear that a subordinate staff member has been appointed as
'Court Commissioner'. Merely the use of word "clerk" appears to be in a
generic reference, and although the names of 13 individuals are not
mentioned specifically with their designation. They have all been appointed
by the Magistrate. They are subordinate employees of the Court, who are
competent to manage and handle various situations at the spot, which
aligns with the intention of the legislature. Even in paragraph 38 of NKGSB
Bank (supra), this aspect has been elaborated. Hence, a purposive
interpretation of the provision is warranted. This is not a case where a peon
or any unqualified person having no knowledge of law has been appointed.
Rather, these persons/individuals, as subordinate court staff, have been
recruited through a proper selection process and have cleared the requisite
in service examinations at both lower and higher levels. They are fully
capable of handling such matters and are well conversant in the provisions
of law, including the CPC and Cr.P.C. Therefore, mere use of the word
"clerks" for a class by the learned Magistrate does not in any manner cause
prejudice to the petitioner or such individuals did not make impugned order
illegal.
13. While, this Court posed a specific query to the learned counsel for the
petitioner regarding whether any prejudice has been caused to the
petitioner by the use of the word "clerks," he failed to respond the same.
Rather to respond the said query, learned counsel for the petitioner stated
that this Court has never passed any order in favor of the borrower(s). Such
a reply is nothing but a mere brow-bitting as this Court has passed only one
order in SARFAESI Act's matter of learned counsel appearing for the
petitioner. Such attitude is not befitting to the learned advocate. However,
this Court refrains from making any further comments on this aspect.
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14. Further, it is apposite to state that, 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.
15. Even, as per Section 17 of the Act, any person aggrieved by the
measures taken under Section 14 must challenge the 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. In view of
the above, the judgment in Standard Chartered Bank (supra) would not
render any assistance to the learned advocate for the petitioner. It is also
pertinent to note that Section 14(1A) of the SARFAESI Act was enacted with
effect from 15.01.2013, i.e., subsequent to the decision in Standard
Chartered Bank (supra).
16. So far as the argument regarding concept of appointment of a Court
Commissioner under the Cr.P.C is concerned, the same are not acceptable
on two grounds. Firstly, the concept of appointing a Court Commissioner is
not alien to the Cr.P.C., inasmuch as Sections 285 and 286 of the Cr.P.C.
[corresponding to Sections 320 and 321 of the BNSS] specifically provide for
issuance and execution of commissions. Hence, the appointment of a Court
Commissioner cannot be said to be foreign to the scheme of the Cr.P.C.
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Secondly, the appointment of a Court Commissioner is in the nature of a
delegated power, whereby the learned Court below authorizes the
Commissioner to perform certain acts on its behalf. Sections 286 of the
Cr.P.C. / 321 of the BNSS provide for execution of such commissions, and the
purpose of appointing a Commissioner is only to exercise the powers of the
Court on its behalf. The Hon'ble Apex Court in NKGSB Cooperative Bank
Limited v. Subir Chakravarty (supra) has recognized that even an advocate
can be appointed as a Court Commissioner to assist in taking possession of
secured assets, Rule 8 of the SARFAESI Act also permits same and provision
of secured assets or immovable property by "authorized officer".
17. In the present case, the Court Commissioner has been appointed
from among the staff of the Court, i.e., an employee subordinate to the
establishment of the learned Magistrate who is an authorized officer. The
Court, while making such appointment, has duly considered that the said
officer is capable of handling the situation at the spot and of dealing with
any objection that may arise. Keeping the aforesaid aspects in mind, the
learned Magistrate has used word clerks of Civil Court, Bardoli, as Court
Commissioners to assist the secured creditor in taking possession of the
secured assets under Section 14(1-A) of the SARFAESI Act. The said order
dated 09.01.2025 is, therefore, just, legal and proper, having been passed
with specific directions.
18. Merely because the learned Magistrate has used the expression
"Court Commissioner," the learned advocate for the petitioner has failed to
point out as to how the same causes any prejudice to the petitioner. The
fact remains that delegation of powers to the staff subordinate to the Chief
Judicial Magistrate is duly recognized under law. If the learned Magistrate
had instead used the word "clerks", are authorized/appointed to take
possession of the secured assets," the substance and effect would remain
the same. The order passed by the learned Magistrate authorizes the said
officer to take possession of the secured assets, which is a purely ministerial
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act. Merely delegating such ministerial duties does not, in any manner, cause
prejudice to the petitioner. No sustainable argument has been canvassed by
the learned advocate for the petitioner to demonstrate otherwise. 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.
19. So far as Standard Chartered Bank (supra) is concerned, the decision
was rendered prior to the amendment of Section 14(1)(A) of the SARFAESI
Act, 2002, which was subsequently inserted and amended in the Act. In
paragraphs 20 to 25 of decision of Standard Chartered Bank (supra), the
object of the Act has been discussed. Therefore, both decisions would not
provide any assistance to the petitioner. So far supervisory jurisdiction is
concerned, no error has been committed by the learned Magistrate. With
regard to other two impugned orders dated 22.01.2025 and 31.01.2025,
only the amount has been amended. Such correction amounts to a
typographical error, and the learned counsel for the petitioner has failed to
demonstrate any prejudice caused to the petitioner. The issue relates solely
to the attachment of the property and not to the recovery proceedings.
20. Further, the learned advocate for the petitioner has relied upon the
judgment of the Hon'ble Apex Court in Asset Reconstruction Company Ltd.
v. Bishal Jaishwal, (2021) 6 SCC 366, and submitted that when an order is
passed contrary to law, a writ petition is maintainable. It is an undisputed
proposition that if an order is passed contrary to law, the petition would be
maintainable. However, the facts of the present case are entirely different.
It is not the case here that any order has been passed by the learned Court
below without jurisdiction or authority. On the contrary, all relevant
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parameters were duly considered while passing the impugned order.
21. Even one more aspect requires consideration. In the present case,
respondent bank cannot be said to be at fault. He has filed the litigation
before the proper jurisdictional Court, and the Court has passed the order.
Merely because the concerned Court mentioned the designation as "clerks"
is an error attributable to the Court itself, for which respondent bank
cannot be made responsible. The legal maxim "Actus Curiae Neminem
Gravabit" which means that an act of the Court shall prejudice no man, or
that neither party should suffer due to the delay or mistake of the Court
fully applies to the facts of this case. The Legislature could never have
intended that an error on the part of the Court in mentioning the
designation would render the order without jurisdiction or prejudice the
rights of the parties. It is also a settled principle that procedural lapses
should not defeat substantive justice. Non-compliance with procedural
requirements relating to pleadings, memoranda of appeal, or applications
for substitution or other reliefs should not entail automatic dismissal or
rejection unless the relevant statute expressly mandates so. Procedural
defects or irregularities which are curable should not be allowed to defeat
substantive rights or cause injustice. Procedure is meant to be a
handmaiden of justice and should never be converted into a tool for denying
justice or perpetuating injustice by an oppressive or punitive application.
The Hon'ble Supreme Court has observed that "to perpetuate an error is no
heroism; to rectify it is the compulsion of judicial conscience." (See: Mayuram
v. CBI, (2006) 5 SCC 752, para 11). It has further been held that once the
Court concludes that a wrong order has been passed, it is the solemn duty
of the Court to rectify its mistake rather than perpetuate the same (See:
State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436). It is equally well
settled that no person should suffer on account of the inaction or fault of
the Court. (See: Jang Singh v. Brij Lal, AIR 1966 SC 1631).
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22. In view of the above, merely mentioning the wrong designation in the
order does not invalidate the order, as the same Court had the requisite
power. It is settled law that when the authority is vested with power, the
exercise of such power under a wrong designation will not render the order
illegal. In the present case, the action taken by the authority is within its
jurisdiction and cannot be invalidated merely on account of an incorrect
designation being mentioned. If the authority has jurisdiction to take a
particular action or pass an order, then an incorrect reference to a provision
or omission of the correct designation does not render the action without
jurisdiction, unless the authority itself lacks jurisdiction over the matter. As
discussed earlier, the learned Magistrate had the power to pass an order
under Section 14 of the SARFAESI Act, and therefore, the argument
canvassed by the learned advocate for the petitioner is not acceptable. The
exercise of power under Section 14 of the SARFAESI Act is administrative
and quasi-judicial in nature, and the interpretation thereof must be guided
by the purpose and object of the legislation.
23. Now, one more aspect is required to be considered. Respondent No.1
has neither challenged the order nor approached the Court for correction of
the designation. It is needless to say that if any error is brought to the
notice of the Court, then to perpetuate an error is no heroism. Whether by
way of challenge or even without formally setting aside the order, the Court
has the inherent power to rectify such defects, and there is no bar to correct
defective orders even in the absence of a challenge thereto. In this regard,
reference may be made to Om Prakash Gupta v. Satish Chandra, AIR 2025
SC 1201, and Minu Kumari v. State of Bihar, (2006) 4 SCC 359, wherein the
Hon'ble Supreme Court has held that:
"The Section does not confer any new power on the High Court. It only saves the
inherent power which the Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an order under the Code, (i) to prevent
abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any inflexible rule which would govern
the exercise of inherent jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may possibly arise. Courts, therefore,
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have inherent powers apart from express provisions of law which are necessary
for proper discharge of functions and duties imposed upon them by law. That is
the doctrine which finds expression in the section which merely recognizes and
preserves inherent powers of the High Courts. All courts, whether civil or criminal
possess, in the absence of any express provision, as inherent in their constitution,
all such powers as are necessary to do the right and to undo a wrong in course of
administration of justice on the principle "quando lex aliquid alicui concedit,
concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a
person anything it gives him that without which it cannot exist). While exercising
powers under the section, the court does not function as a court of appeal or
revision. Inherent jurisdiction under the section though wide has to be exercised
sparingly, carefully and with caution and only when such exercise is justified by
the tests specifically laid down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the administration of which alone
courts exist. Authority of the court exists for advancement of justice and if any
attempt is made to abuse that authority so as to produce injustice, the court has
power to prevent abuse. It would be an abuse of process of the court to allow any
action which would result in injustice and prevent promotion of justice. In exercise
of the powers court would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends of justice.
24. 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, 2025 INSC 895.
In the present case, the minor procedural defect pertains only to the
mention of designation in the order. No substantial prejudice or
irregularity is found in the order, and the petitioner has failed to
demonstrate any prejudice caused to him on account of this defect.
25. Lastly, learned counsel for the petitioner has submitted a Pursis
and submitted that, the persons who were appointed as Court
Commissioners are clerks and are functioning in the capacity of clerks as
of today. It is needless to say that, as discussed in earlier part of the
order, as statutory rules are framed and designation are also prescribed
under the statutory right from peon to Registrar and Asst. Registrar in
Class III to I in different categories. Hence, mere belief of learned
counsel for the petitioner that clerks are still working in the Court is not
a ground fo accept the said argument in view of the statutory provisions
being made. Not only that, as discussed earlier, word "clerks" is used
which denotes the class of subordinate employees of specific
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designation of those 13 employees.
26. 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.1. 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., (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 fails to point out
or show any prejudice caused to him due to mere mentioning of wrong
designation "clerk" in the order only using the word "Court
Commissioner. However, it is kept open for learned CJM, Bardoli, if
deems fit, to issue fresh appointment order of Court staff with their
respective designation.
27. Accordingly, order dated 09.01.2025 passed by learned Principal
Senior Civil Judge and Additional Chief Judicial Magistrate, Bardoli, in
Criminal Misc. Application No. 468 of 2024 and further orders dated
22.01.2025 and 31.01.2025 passed in Criminal Misc. Application
No.468/2024 along with impugned notice dated 07.02.2025 issued in
the name of Court Commissioner, do not suffer from any jurisdictional
error so as to warrant interference. The petition is, therefore,
dismissed.
(HASMUKH D. SUTHAR,J)
SUCHIT
