Ghra Finance Ltd. (Bandhan Bank ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 8208 MP

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THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
                            W. P. No.26004 of 2021
                (Grih Finance Ltd. vs. The State of M.P. & others)


                           W. P. No.26013 of 2021
               (Grih Finance Ltd. vs. The State of M.P. & others)
                           W. P. No.25740 of 2021
               (Grih Finance Ltd. vs. The State of M.P. & others)
                                       &
                           W. P. No.25786 of 2021
               (Grih Finance Ltd. vs. The State of M.P. & others)


Indore, dated :04.12.2021

         Shri Manoj Sharma, learned counsel for the petitioner.
         Shri Sudhanshu Vyas, learned Government Advocate for the
respondent - State.

Regard being had to the similitude of the question involved, on the joint request of the parties, these matters are finally heard.

Learned counsel for the petitioner, at the outset submits that all the orders under challenge are pregnant with singular ground based on Section 31(g) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002.

The said aspect was examined in detail by this Court in W. P. No.11069/2021 (AU Small Finance Bank Limited through its Authorised Signatory Mr. Dhirendra Sonkar vs. The State of Madhya Pradesh and others) decided on 29.06.2021. This matter is squarely covered by the said order.

Shri Vyas, learned Government Advocate, after examining the same submits that the present matters are indeed covered by the order of this Court dated 29.06.2021 passed in the said writ petition.

This Court in the said writ petition has opined as under :- 6 No other point is pressed by learned counsel for the parties. This is trite that if language of statute is plain and unambiguous, it should be given effect to irrespective of

THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.26004 of 2021 (Grih Finance Ltd. vs. The State of M.P. & others)

consequences See - Nelson Motis Vs. Union of India and others reported in 1992 (4) SCC 711.

7 This Court in recent order passed in Aspire Home Finance (supra) opined as under -

Relevant portion of Sec.31 reads as under:- "31. Provisions of this Act not to apply in certain cases.-- The provisions of this Act shall not apply to--

(g) [any properties not liable to attachment (excluding the properties specifically charged with the debt recoverable under this Act)] or sale under the first proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908 (5 of 1908); (emphasis supplied)

9. A plain reading of this provision shows that argument of learned counsel for petitioners has substance. The legislature in its wisdom decided to exclude the properties which are specifically charged with the debt recoverable under the Act. The provision is clear and unambiguous which makes it clear that provision of the Act is inapplicable relating to such properties which are not liable to attachment excluding the properties specifically charged with debt recoverable under this Act namely Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The learned Addl. District Magistrate in fact read the provision in such a way where word "excluding" is understood or read by him as "including" which resulted into a conclusion that a residential property is outside the purview of the Act whereas Clause (g) shows otherwise. Pertinently in the instant matter, we are concerned with a property which was admittedly mortgaged and description of which is covered by the expression which finds place in Clause

(g) of Sec.31. In this matter, we are not concerned with the property which is not liable to the attachment as per sub-section (1) of Section 60 and, therefore, we are not required to deal with the said aspect.

10 Considering the aforesaid, order dated 26/8/2020 and 19/8/2020 impugned in both the cases are set aside. The matters are restored in the file of learned Addl. District Magistrate who will consider and pass appropriate orders in consonance with Sec.14 of the Act.

It is made clear that this Court has not expressed any

THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE W. P. No.26004 of 2021 (Grih Finance Ltd. vs. The State of M.P. & others)

opinion on the merits of this matter."

8 The first point raised by Shri Saboo stands concluded. We have no hesitation to hold that the Additional District Magistrate has erred in understanding and reading section 31(g) of the Act. In the scheme of the Act, such residential accommodations are not beyond the purview of the Act. 9 Secondly,as per the principle laid down in the judgment passed in Cholamandhalam Investment and Finance Ltd (supra), no adjudication by Additional District Magistrate was permissible. It was not open to learned Additional District Magistrate to hold that initiation of NPA proceedings against only one borrower is bad in law. 10 Considering the aforesaid, the impugned orders dated 12/10/2020 ( Annexure-P/3) and 19/08/2020 ( Annexure-P/3) respectively in both the petitions are set aside. The matters are restored in the file of learned Additional District Magistrate, who will proceed in accordance with law and pass appropriate orders in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of this matter.

In view of the order passed by this Court and consensus arrived at regarding the applicability of the said order, all the impugned orders passed under Section 14 of the SARFAESI Act are set aside and the matters are restored in the file of learned Additional District Magistrates, who will proceed in accordance with law and pass appropriate orders accordingly. This Court has no doubt that learned Additional District Magistrates will consider the scheme of the Act and pass appropriate order expeditiously. It is made clear that this Court has not expressed any opinion on the merits of the case.

The petitions are disposed of.

Certified copy, as per rules.

                  (Sujoy Paul)                                 (Pranay Verma)
                    Judge                                            Judge
        gp

Digitally signed by GEETA PRAMOD
Date: 2021.12.06 10:37:45 +05'30'