Madras High Court
M/S.Essess Toolroom Services vs The District Collector And ... on 27 September, 2021
W.P.(MD)No.17444 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.09.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The HON'BLE MR.JUSTICE M.DURAISWAMY
W.P.(MD) No.17444 of 2020
and
W.M.P(MD)No.14593 of 2020
M/s.Essess Toolroom Services,
Rep. by its Partner P.S.Karthic,
S/o.P.K.Sitaraman .. Petitioner
Vs
1.The District Collector and District Magistrate,
Tiruchirapalli,
Tiruchirapalli District.
2.The Tahsildar,
Taluk Office, Thiruverumbur Taluk,
Thiruverumbur,
Tiruchirapalli District.
3.The Authorized Officer,
Andhra Bank,
No.26, Warner's Road,
Cantonment,
Tiruchirapalli.
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W.P.(MD)No.17444 of 2020
4.The Authorized Officer,
Union Bank of India,
No.26, Warner's Road, Cantonment,
Tiruhirappali-620001.
5. The Regional Manager,
Union Bank of India,
Regional Office – RMD Department,
No.174, 1st Floor, Sivashakthi Complex,
Thillai Nagar, Tiruchirapalli-620018.
6. The Superintendent of Police,
Tiruchirapalli,
Tiruchirapalli District.
7. The Inspector of Police,
Navalpattu Police Station,
Tiruchirapalli District.
8. The Inspector of Police,
Thiruverumbur Police Station,
Tiruchirapalli District. .. Respondents
PRAYER: Writ Petition under Article 226 of the Constitution of India
seeking issuance of a Writ of Certiorarified Mandamus, calling for the
records of the first respondent made vide proceedings
No.K.Dis.G5/22046/2018, dated 03.11.2020 and quash the same as illegal
and unenforceable, direct for investigation for unauthorised operation of my
Savings Account No.177510100020506 to the tune of Rs.1,83,45,000/- and
direct the third respondent Bank for negotiating One Time Settlement with
the petitioner.
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W.P.(MD)No.17444 of 2020
For Petitioner : Mr.SU.Srinivasan
For Respondents : Mr.P.Thilak Kumar
Government Pleader
for R.1, R.2, R.6 to R.8
: Mr.V.S.Karthick
for R.3 to R.5
ORDER
[Order of the Court was made by The Hon'ble CHIEF JUSTICE]
The petition is as misconceived as they come and considerable time
has been wasted in flogging a dead horse.
2.The petitioner has no defence to the claim of the bank and none is
cited as a ground. However, the petitioner, true to the spirit of the Indian
borrower who forgets to repay, has filed an application before the Debts
Recovery Tribunal challenging the measures adopted by the respondent
secured creditor in invoking Section 13(4) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002. The immediate grievance of the petitioner is upon the District
Collector, Tiruchirappalli, passing an order on November 3, 2020, on the
secured creditor's request under Section 14 of the said Act.
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W.P.(MD)No.17444 of 2020
3.The petitioner refers to Section 14 of the Act, particularly to the
first proviso thereto, that mandates that on receipt of an affidavit from the
authorised officer of a secured creditor, the concerned authority “shall after
satisfying the contents of the affidavit pass suitable orders...”. The
contention in such regard is that notwithstanding the concerned official not
being required to undertake any process of adjudication, the official should
satisfy himself that the conditions exist which require the official to render
executive assistance to the requesting secured creditor to have access to the
secured assets or the papers pertaining thereto.
4.The order dated November 3, 2020 refers to Section 14(2) of the
said Act and proceeds to issue the directions for assistance. The properties
have been described by incorporating, possibly, the schedule to the
application under Section 14 of the Act as a part of the order. The petitioner
asserts that there is nothing in the order which indicates the application of
the mind of the Collector to the matters in issue and no satisfaction of the
conditions has been recorded in the order.
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W.P.(MD)No.17444 of 2020
5.In support of the argument on such core, the petitioner places a
recent judgment of the Supreme Court reported at AIR 2019 SC 4619 (The
Authorised Officer, Indian Bank v. D.Visalakshi). The petitioner also relies
on an unreported Division Bench judgment of this Court in W.P.No.10562
of 2018 delivered on June 22, 2018 (K.K.Dhanraj v. The District
Magistrate and District Collector). The petitioner maintains that in view of
the aforesaid judgments, it would not do for a District Collector or a
Magistrate in receipt of a request under Section 14 of the Act to
mechanically provide the assistance without applying his mind as to
whether a case has been made out in such regard.
6.The judgment in D.Visalakshi notices that no adjudication is
undertaken by an official in receipt of a request under Section 14 of the Act,
but says that due care and caution should be taken and a judicious approach
must be adopted in ascertaining whether the assistance as sought ought to be
extended to the relevant secured creditor.
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W.P.(MD)No.17444 of 2020
7.In the scheme of the said Act of 2002, Section 14 is a pivotal
provision. The said Act was brought in since public funds were not being
recirculated in the market as they were blocked in huge non-performing
assets. It may be recollected that in the early 1990s, the entire set of bank
actions was taken out of the purview of the civil court's jurisdiction and
parked with a specialised tribunal created, first, under an Ordinance and,
then, under the Recovery of Debts due to Banks and Financial Institutions
Act, 1993. The Ordinance and, thereafter, the Act came to be made
following, first, a report by the Tiwari Commission and a further report by
the Narasimhan Commission. However, in less than a decade of the Act of
1993 being in place, it was discovered that non-performing assets were not
being recovered or the money blocked was not being liquidated with the
degree of speed that was necessary for such money to refuel the economy.
8.After further studies were commissioned and their reports obtained,
the NPA Act was conceived. Thus was born the said Act of 2002. So as to
ensure that the secured assets that had been put up as securities with the
secured creditors for the purpose of obtaining credit facilities were quickly
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W.P.(MD)No.17444 of 2020
liquidated, the Act of 2002 made a departure from the usual procedure till
then in vogue. Under the Act of 2002 secured creditors have the authority to
proceed against the securities and liquidate the same so that the blocked
funds are converted into liquid money and immediately available for fresh
circulation. Indeed, the Act of 2002 has reversed the general order of
adjudication before execution and, in a sense, secured creditors get to
execute the claim, before the exercise of adjudication can be undertaken.
Again, the adjudication may not be necessary, unless it is sought by any
borrower or other person aggrieved by any measure adopted by the secured
creditor under Section 13(4) of the Act.
9.Thus, in the scheme of the Act, upon an account turning NPA as per
the Reserve Bank of India guidelines, the concerned secured creditor is
obliged to issue a notice under Section 13(2) of the Act to the borrowers
(which definition also includes guarantors) calling upon the borrowers to
repay the amount due. The borrowers may respond to such notice,
whereupon the secured creditor is obliged, by virtue of sub-section 3(A)
being introduced in Section 13 of the Act following the judgment in Mardia
Chemicals Limited v. Union of India, [(2004) 4 SCC 311], to consider the
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W.P.(MD)No.17444 of 2020
same and reply thereto. However, neither the notice under Section 13(2) of
the Act nor the reply to the borrowers' response thereto is justiciable at such
stage. Indeed, it is only upon of a measure taken by the secured creditor
under Section 13(4) of the Act that any person aggrieved thereby, including
a borrower, may approach the jurisdictional Debts Recovery Tribunal under
Section 17 of the Act. At such stage, whatever objection may be available
to the borrower or the person aggrieved may be carried and the Debts
Recovery Tribunal is required to adjudicate thereupon.
10.Section 14 of the Act is placed, in the chronological order of how
a secured creditor needs to proceed, immediately after Section 13 of the Act.
Section 14 of the Act, in its present form, is more refined that what it was at
the initial stage. In essence, such provision requires a secured creditor
seeking executive assistance from an appropriate authority to furnish certain
declarations by way of an affidavit. It is imperative that the official in
receipt of the request must go through the declarations to ascertain whether
the declarations have been appropriately made. However, the official cannot
go into the legality or veracity of the declarations made, as long as the
declarations appear to be in order and not completely absurd or outlandish.
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W.P.(MD)No.17444 of 2020
11.Again, the second duty cast upon the official in receipt of the
request under Section 14 of the Act is to provide appropriate assistance. The
need to provide the assistance is to ensure that the secured asset may be sold
and the funds unblocked as the non-performing asset is liquidated as a
consequence. The judicious approach that the authority in receipt of a
request under Section 14 of the Act as to adopt, pertains to ascertaining
whether the appropriate declarations have been furnished and rendering the
adequate assistance which is necessary. If the relevant official goes
overboard and makes an order in excess of what is sought or what may be
adequate, surely the same would not pass muster. Again, if the official in
receipt of a request under Section 14 of the Act does not refer to the
declarations at all and does not even consider whether the person making a
request is a secured creditor or not, the steps taken or the order made by the
concerned official may be called into question.
12.However, in the everyday matter under Section 14 of the Act,
where the authority is satisfied that the assistance has been appropriately
sought by a secured creditor and the authority goes about extending the
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W.P.(MD)No.17444 of 2020
assistance which is necessary, inter alia, by issuing directions to the revenue
or police officials, a writ court when presented with such kind of an order
may not be minded to interfere therewith.
13.There is no doubt that the steps taken by a secured creditor,
including the assistance sought under Section 14 of the Act, would
ultimately be justiciable in course of proceedings under Section 17 of the
Act. Equally, there is no doubt that when an official authorised under
Section 14 of the Act to receive a request and deal with the same, acts
completely without jurisdiction or in a manner which may be wholly
arbitrary or unreasonable, even the writ court might be excited to entertain a
petition thereagainst and deal with the order in the appropriate case. But the
mere failure of an official to specify in the order passed under Section 14 of
the Act that he had satisfied himself that the preconditions existed for the
exercise of jurisdiction under such provision may not, by itself, be a ground
to challenge the order in the extraordinary jurisdiction under Article 226 of
the Constitution, unless a corollary or resultant prejudice suffered by the
petitioner is indicated.
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W.P.(MD)No.17444 of 2020
14.In the unreported judgment of the Division Bench of this Court
relied upon by the petitioner, the case that was clearly made out was that the
secured asset was a coparcenary property and no security in such regard
could have been furnished. As a result, the writ court was minded to go into
the matter since it went to the root of the security being furnished to the
secured creditor in that case.
15.In the present case, the petitioner cannot indicate any prejudice
suffered except that his perceived fundamental right, to obtain credit
facilities and not repay, may have been infringed.
16.For the reasons aforesaid, there is no merit in the petition although
nothing in this order will prejudice the petitioner from pursuing the
petitioner's remedy in accordance with law before the jurisdictional Debts
Recovery Tribunal. It is also made clear that the observations herein are
limited for the purpose of the present lis and should not unduly weigh with
any other authority approached by the petitioner herein.
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W.P.(MD)No.17444 of 2020
17.Since, at this stage, the petitioner makes a request for shifting the
functioning operations from the secured assets within a month from date,
the secured creditor would do well to consider such request charitably and
allow reasonable time to the writ petitioner to enable the writ petitioner to
relocate its business.
18.W.P(MD)No.17444 of 2020 is disposed of without interfering
with the order impugned. The petitioner should pay costs of Rs.5,000/-
(Rupees five thousand only) to the Madurai Advocates Welfare Society.
Consequently, W.M.P(MD)No.14593 of 2020 is closed.
(S.B., CJ.) (M.D., J.)
27.09.2021
Index : Yes/No
Internet : Yes/No
ps/pkn
Note : In view of the present lock
down owing to COVID-19 pandemic,
a web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.17444 of 2020
To:
1.The District Collector and District Magistrate,
Tiruchirapalli,
Tiruchirapalli District.
2.The Tahsildar,
Taluk Office, Thiruverumbur Taluk,
Thiruverumbur,
Tiruchirapalli District.
3. The Superintendent of Police,
Tiruchirapalli,
Tiruchirapalli District.
4. The Inspector of Police,
Navalpattu Police Station,
Tiruchirapalli District.
5. The Inspector of Police,
Thiruverumbur Police Station,
Tiruchirapalli District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.17444 of 2020
THE HON'BLE CHIEF JUSTICE
and
M.DURAISWAMY, J.
ps/pkn
W.P.(MD) No.17444 of 2020
27.09.2021
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