Aspire Home Finance Corporation ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 2561 MP

1                                           WP No.16884/2020 & WP No.16891/2020


The High Court of Madhya Pradesh Bench at Indore
           WRIT PETITION NO.16884/2020

     Aspire Home Finance Corporation Ltd Vs. State of M.P. & Ors.

                     WRIT PETITION NO.16891/2020

     Aspire Home Finance Corporation Ltd Vs. State of M.P. & Ors.

Indore, Dated:21.06.2021
         Heard through video conferencing.
         Shri Rohit Saboo, learned counsel for petitioner.
         Shri Vivek Dalal, learned A.A.G. for respondent/State.
         With the consent, finally heard.
                                 ORDER

Regard being had to the similitude of the question involved, on the joint request of the parties matters are analogously heard and decided by this common order.

2. At the outset, Shri Saboo submits that although borrower/respondent No.5 is not served, he need not be served in the light of the judgment of division bench of this Court in the matter of Aditya Birla Finance Vs. Carnet Elias Fernandes Yemalayam 2019(1)MPLJ 471.

3. Shri Dalal did not oppose the said contention.

4. In the light of the ratio laid down in Aditya Birla (supra), we find substance in the argument of petitioners and, therefore, matters are heard.

5. The facts are taken from WP No.16884/2020. The challenge is mounted to the order dated 26/8/2020 whereby learned Addl. District Magistrate opined that in the teeth of Sec.31(g) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act), the proceedings under the Act are not maintainable because the borrower took loan against a mortgaged residential property.

6. Learned counsel for petitioners by taking the Court to the language employed in Sec.31(g) of the Act submits that word "excluding" mentioned in the provision has escaped notice of learned Addl. District Magistrate . Indeed, he treated the provision as if in place of "excluding", the word "including" was there. This resulted into miscarriage of justice. If statute is read in its correct perspective, such properties which are specifically charged and regarding which debt is recoverable under the Act are in fact "excluded". Thus, the impugned order may be interfered with.

7. Shri Dalal, learned A.A.G. did not dispute the legal proposition advanced by learned counsel for petitioners.

8. We have heard learned counsel for parties at length.

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 opinion on the merits of this matter.

11. The petitions are disposed of.

  (SUJOY PAUL)                            (SHAILENDRA SHUKLA)
     Judge                                         Judge




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Digitally signed by
VARGHESE MATHEW
Date: 2021.06.22
13:58:00 -07'00'