Gujarat High Court
Dhanalakshmi Bank Ltd vs Chief Metropolitan Magistrate ... on 12 August, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/5353/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5353 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DHANALAKSHMI BANK LTD....Petitioner(s)
Versus
CHIEF METROPOLITAN MAGISTRATE AHMEDABAD & 1....Respondent(s)
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Appearance:
MR SH ALMAULA, ADVOCATE for the Petitioner(s) No. 1
MR ALPESH BHATT, AGP for the Respondent(s) No. 1
MR SHAKTI S JADEJA, ADVOCATE for the Respondent(s) No. 2
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 12/08/2015
ORAL JUDGMENT
1. Heard Ms.K.S.Almaula, for Mr.S.H.Almaula, learned counsel for the petitionerBank, Mr.Alpesh Bhatt, learned Assistant Government Pleader for respondent Page 1 of 5 HC-NIC Page 1 of 5 Created On Fri Aug 14 12:54:27 IST 2015 C/SCA/5353/2014 JUDGMENT No.1 and Mr.S.P.Majmudar with Mr.Shakti Jadeja, learned counsel for respondent No.2.
2. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitionerBank has challenged order dated 21.01.2014 passed by learned Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No.188 of 2013. Learned Chief Metropolitan Magistrate, Ahmedabad has dismissed the said application filed by the petitioner under Section 14 of the Securitization and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the Act" for short).
3. It appears from the record that the petitioner Bank gave car loan of Rs.53,00,000/ (Rupees Fifty Three Lacs) to respondent No.2 for purchase of BMW brand new car. Pursuant to the said loan, respondent No.2 executed the Deed of General Hypothication dated 15.11.2010. It is the case of the petitionerBank that the amount so advanced by the petitioner to respondent No.2 was to be repaid in equated monthly installments of Rs.2,35,000/ with fixed interest rate of 12.50% per annum. After taking delivery of the said new car bearing Registration No.GJ1KJ7153, respondent No.2 did not pay the EMI as agreed and the petitionerBank was therefore, constrained to classify the said loan account of respondent No.2 as "NonPerforming Asset"
as per the guidelines of the Reserve Bank of India. It is further case of the petitioner that though oral Page 2 of 5 HC-NIC Page 2 of 5 Created On Fri Aug 14 12:54:27 IST 2015 C/SCA/5353/2014 JUDGMENT requests were made, no payment was made and therefore, the petitioner issued notice as provided under Section 13(2) of the Act.
4. Suffice it to state that thereafter, the petitioner approached learned Chief Metropolitan Magistrate, Ahmedabad, by filing an application under Section 14 of the Act, which came to be registered as Criminal Misc. Application No.188 of 2013. By the impugned order dated 21.01.2014, learned Chief Metropolitan Magistrate, Ahmedabad dismissed the application filed by the petitionerBank. Being aggrieved by the same, the petitioner is constrained to file present petition.
5. Learned counsel for the petitioner has taken this Court through the factual matrix arising out of this petition and it was contended that learned Chief Metropolitan Magistrate has dealt with the merits of the account of the petitioner, which is not permissible under Section 14 of the Act. The learned Chief Metropolitan Magistrate has no power under Section 14 of the Act to go into the merits of the case and to examine the legality, which can only gone into by learned Debts Recovery Tribunal under Section 17 of the Act. It was therefore, submitted that the impugned order is bad in law and illegal and the same deserves to be quashed and the application under Section 14 of the Act deserves to be allowed by this Court.
6. Per contra, learned counsel for respondent No.2 Page 3 of 5 HC-NIC Page 3 of 5 Created On Fri Aug 14 12:54:27 IST 2015 C/SCA/5353/2014 JUDGMENT has relied upon the AffidavitinReply, which is filed by respondent No.2.
No other and further submissions are made by learned counsel for the respective parties.
7. On bare reading of the order impugned, it clearly appears that not only the merits have been examined by learned Chief Metropolitan Magistrate, Ahmedabad, but the learned Chief Metropolitan Magistrate has given his own findings and has come to the conclusion that no dues are payable.
8. Learned counsel for the respective parties, more particularly respondent No.2 has not invited any reasons for passing this order, more particularly, as the present petition relates to only the application filed by the petitioner under Section 14 of the Act.
9. Considering the ratio laid down by the Division Bench of this Court in the case of I.D.B.I Bank Ltd. through Authorized Signatory Vs. District Magistrate & Anr. [2011 (2) GLH 12], the impugned order deserves to be quashed and set aside and the proceedings of Criminal Misc. Application No.188 of 2013 deserves to be remanded back for its rehearing before learned Chief Metropolitan Magistrate, Ahmedabad.
10. For the foregoing, the petition is allowed. The proceedings of Criminal Misc. Application No.188 of 2013 stand restored to the file of learned Chief Metropolitan Magistrate, Ahmedabad, who shall hear the Page 4 of 5 HC-NIC Page 4 of 5 Created On Fri Aug 14 12:54:27 IST 2015 C/SCA/5353/2014 JUDGMENT petitioner as well as respondent No.2 and pass appropriate order in accordance with law, keeping in mind the ratio laid down by the Division Bench of this Court in the case of I.D.B.I Bank Ltd. (supra), preferably within a period of one month from the date of receipt of this order. Rule is made absolute accordingly. No costs.
Sd/-
(R.M.CHHAYA, J.) Suchit Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri Aug 14 12:54:27 IST 2015