M/S V.K. Trading Company And ... vs District Magistrate
2023 Latest Caselaw 2720 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No. 2558 of 2023
M/S V.K. Trading Company and another......Petitioner

                              Versus

District Magistrate, Udham Singh Nagar and others
                                  ........Respondents
Present:-
              Mr. Atul Kumar Bansal, Advocate for the petitioner.
              Mr. Suyesh Pant, Standing Counsel for respondent
              no.1.
              Mr. Ashish Joshi, Advocate for respondent nos.2, 3
              and 4.

                           JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition is made to an

order dated 12.09.2022, passed by the respondent no.1,

the District Magistrate, Udham Singh Nagar ("the District

Magistrate") under Section 14 of the The Securitisation

And Reconstruction Of Financial Assets And Enforcement

Of Security Interest Act, 2002 ("SARFAESI Act"). The

petitioner also seeks directions to the respondent no.2,

the State Bank of India ("the bank") to open the lock of

the residential house of the petitioner no.2 and permit the

family of the petitioner no.2 to reside in the house.

2. Heard learned counsel for the parties and

perused the record.

3. It is the case of the petitioner that the

petitioner no.1 has taken loan from the bank; the bank

proceeded under the provisions of the SARFAESI Act and

by the impugned order, the District Magistrate passed an

order on 12.09.2022 for taking possession of the secured

assets.

4. It is the case of the petitioner that correct

figures and dates were not placed before the District

Magistrate. The wrong dates of NPA was given. The figures

were wrong. The District Magistrate while passing the

impugned order did not verify the details and the facts of

the case.

5. It is also argued that under the statue an order

on the application under Section 14 of the SARFAESI Act

is to be passed within one month of the SARFAESI Act, at

the most within two months, but in the instant case the

order was passed after 09 months and one year

thereafter, the secured assets have been taken into

possession by the respondent-bank. It is argued that the

entire proceedings are bad in the eyes of law.

6. At the very outset the Court wanted to know,

as to why the instant petition be entertained and why the

petitioner should not approach the authority under

Section 17 of the SARFAESI Act for redressal of his

grievances in view of the law laid down by the Hon'ble

Supreme Court.

7. Learned counsel for the petitioner would

submit that in the case of Harshad Govardhan Sondagar

Vs. International Assets Reconstruction Company Limited

and Others, (2014)6 SCC 1, Hon'ble Supreme Court has

held that, " the decision of the Chief Metropolitan

Magistrate or the District Magistrate can be

challenged before the High Court under Articles 226

and 227 of the Constitution by any aggrieved party

and if such a challenge is made, the High Court can

examine the decision of the Chief Metropolitan

Magistrate or the District Magistrate, as the case may

be, in accordance with the settled principles of law."

8. Learned counsel for the petitioner would also

submit that the SARFAESI Act does not provide for

challenge of an order passed under Section 14 of the

SARFAESI Act and if, there is any interpretation by the

higher Courts on that aspect that may not be construed

as a statue and it may not override the provisions of the

SARFAESI Act. In support of this contention learned

counsel has placed reliance on the principle as laid down

in the case of M/S Amar Nath Om Prakash and others Vs.

State of Punjab and others, AIR 1985 SC 218, wherein in

para 11 of the judgment the Hon'ble Supreme Court

observed that the judgments of the courts are not to be

construed as statues, in fact, it has been so observed in a

context in para 10 of the judgment, the Hon'ble Supreme

Court observed as hereunder:-

"10. There is one other significant sentence in Sreenivasa General Traders v. State of A.P (supra) with which we must express our agreement, It was said "With utmost respect, these observations of the learned Judge are not to be read as Euclid's theorems, nor as provisions of a statute. These observations must be read in the context in which they appear." We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737, 761 : (1951)-2 All ER 1, 14 (HL)] Lord Mac Dermott observed:

"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the

language actually used by that most distinguished Judge"

In Home Office v. Dorset Yacht Co. Ltd. (1970) 2 All ER 294 Lord Reid said. "Lord Atkin's speech .......... is not to be treated as if it was a statutory definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord Morris said:

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.""

9. The SARFAESI Act has been enacted to

regulate securitisation and reconstruction of financial

assets and enforcement of security interest, etc. It is the

Code which is complete in itself. The principle of law as

laid down in the case of Harshad Govardhan Sondagar

(supra) has been discussed by the Hon'ble Supreme Court

in the case of C. Bright vs. District Collector and others,

(2021)2 SCC 392 and the Hon'ble Supreme Court has

held that:-

"19. Harshad Govardhan Sondagar Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd., (2014) 6 SCC 1 : (2014) 3 SCC (Civ) 1 was a case where the person in possession claimed tenancy rights in the premises as well as a

protected tenancy, being a tenant prior to creation of a mortgage. It was held that the remedy of an aggrieved person against a decision of Chief Metropolitan Magistrate or a District Magistrate lay only before the High Court. However, after the aforesaid judgment was rendered on 3-4- 2014, the Act had been amended and subsection (4-A) was inserted in Section 17 with effect from 1-9-2016. This provided a right to move an application to the Debts Recovery Tribunal by a person who claimed tenancy or leasehold rights."

10. Not only this, in the case of Kotak Mahindra

Bank Limited. Vs. Girnar Corrugators Private Limited and

Others, (2023)3 SCC 210, the Hon'ble Supreme Court has

categorically held that, in fact, an order passed under

Section 14 may also be challenged under Section 17 of

the SARFAESI Act. In para 34 of the judgment, the

Hon'ble Supreme Court observed as hereunder:-

"34. Under Section 14 of the Sarfaesi Act, the District Magistrate or the Chief Metropolitan Magistrate as the case may be is required to assist the secured creditor in getting the possession of the secured assets. Under Section 14 of the Sarfaesi Act, neither the District Magistrate nor the Metropolitan Magistrate would have any jurisdiction to adjudicate and/or decide the dispute even between the secured creditor and the debtor. If any person is aggrieved by the steps under Section 13(4)/order passed under Section 14, then the aggrieved person has to approach the Debts Recovery Tribunal by way of appeal/application under Section 17 of the Sarfaesi Act."

11. The petitioner has an alternate efficacious

remedy to ventilate his grievance under Section 17 of the

SARFAESI Act. Therefore, this Court is of the view that

the instant petition may not be entertained. Accordingly,

the petition deserves to be dismissed at the stage of

admission itself.

12. The petition is dismissed in limine.

13. When these lines were dictated, learned

counsel for the petitioner seeks further indulgence of the

Court to clarify that the petitioner shall have liberty to

take all the defences before the Debt Recovery Tribunal. It

goes without saying that this Court has not decided the

matter on merits. Whatever defences are available to the

petitioner that may be taken in any other proceedings as

permissible under law.

(Ravindra Maithani, J.) 18.09.2023 Sanjay