Madhya Pradesh High Court
Twarit Sarda vs Indostar Capital Finance Limited ... on 2 December, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-IND:34159
1 MP-6670-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 2 nd OF DECEMBER, 2024
MISC. PETITION No. 6670 of 2024
TWARIT SARDA AND OTHERS
Versus
INDOSTAR CAPITAL FINANCE LIMITED THROUGH AUTHORISED
OFFICER RITUPARN KHANDEKAR AND OTHERS
Appearance:
Shri Praveen Kachole - Advocate for the petitioners.
ORDER
Per: Justice Vivek Rusia Petitioners have filed this present petition under Article 227 of the Constitution of India challenging the order dated 28.05.2024 passed by the Chief Judicial Magistrate, Indore in MJCR No. 3105/2024.
02. As per the facts of the case, petitioners No. 1 to 5 took a housing loan from respondent No. 1 to the tune of Rs. 1,81,76,415/- on 31.10.2017 and thereafter Rs. 33,00,000/- on 29.09.2020 by way of equitable mortgage of the property situated at House No. 136, Kalindi Kunj, Pipliya Hana, Indore (MP). Petitioners became defaulter and espondent No.1 initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act') and approached the CJM for taking possession of the Signature Not Verified Signed by: SREEVIDYA Signing time: 03-12- 2024 19:02:22 NEUTRAL CITATION NO. 2024:MPHC-IND:34159 2 MP-6670-2024 secured asset. Vide order dated 08.12.2023, the learned CJM allowed the application and directed the Commissioner to take peaceful possession of the mortgaged property. After passing of the aforesaid order, CJM issued a possession warrant dated 22.12.2023. Thereafter, petitioner appeared with an application under Section 151 of the Civil Procedure Code raising objection that respondent No. 2 is a necessary party and that an amount of Rs. 14 lakhs has been deposited on 20.01.2023. The said application was dismissed vide order dated 28.05.2024 on the ground that after passing final order on 08.12.2023 the CJM has become functus officio . Hence, the petitioners have approached this Court.
03. Learned counsel for the petitioners submits that the learned Magistrate has passed the order mechanically without verifying the statement of the account. Petitioners took two loans from respondent No. 1, however, during the proceedings under the SARFAESI Act, the secured assets were assigned to respondent No. 2 hence respondent No. 2 is a necessary party who has not been impleaded. In support of his contentions, learned counsel for the petitioners placed reliance on the judgments passed in case of V. Noble Kumar vs. The Authorised Officer, W.P.No. 4600 of 2010 dated 27.07.2010 (High Court of Judicature at Madras); Aditya Birla Finance Limited vs. Shri Carnet Elias Fernandez Vemalayam, W.A No. 784 of 2018 dated 13.07.2018 (High Court of MP) .
04. Learned counsel for the petitioners also submits that the loan account of petitioners has wrongly been classified as Non Performing Asset (NPA) in violation of the circulate dated 02.07.2012 issued by the Reserve Signature Not Verified Signed by: SREEVIDYA Signing time: 03-12- 2024 19:02:22 NEUTRAL CITATION NO. 2024:MPHC-IND:34159 3 MP-6670-2024 Bank of India.
05. Heard learned counsel for the petitioners.
06. The scope of Sections 14 and 17 of the SARFAESI Act has recently been considered by the Apex Court in case of Balkrishna Rama Tarle dead through Legal Heirs & Anr. vs. Phoenix Arc Private Limited & Ors., (2023) 1 SCC 662 wherein it has been held that the power exercisable by CMM/DM under Section 14 are ministerial steps and Section 14 does not involve any adjudicatory process qua points raised by borrowers against secured creditor taking possession of secured assets. Paragraph 18 of the judgment is reproduced hereunder :
''Thus, the powers exercisable by CMM/DM under Section 14 of the SARFAESI Act are ministerial steps and Section 14 does not involve any adjudicatory process qua points raised by the borrowers against the secured creditor taking possession of the secured assets. In that view of of the matter once all the requirements under Section 14 of the SARFAESI Act are complied with/satisfied by the secured creditor, it is the duty cast upon the CMM/DM to assist the secured creditor in obtaining the possession as well as the documents related to the secured assets even with the help of any officer subordinate to him and/or with the help of an advocate appointed as Advocate Commissioner. At that stage, the CMM/DM is not required to adjudicate the dispute between the borrower and the secured creditor and/or between any other third party and the secured creditor with respect to the secured assets and the aggrieved party to be relegated to raise objections in the proceedings under Section 17 of the SARFAESI Act, before the Debts Recovery Tribunal.''
07. In the present case, final order has been passed by the CJM under Section 14 of the SARFAESI Act against which petitioners have remedy under Section 19 of SARFAESI Act by way of filing Securitisation Application before the Debt Recovery Tribunal. Hence, we refrain from interfering in the order impugned due to availability of efficacious alternative remedy. All the grounds raised by the petitioners in this petition Signature Not Verified Signed by: SREEVIDYA Signing time: 03-12- 2024 19:02:22 NEUTRAL CITATION NO. 2024:MPHC-IND:34159 4 MP-6670-2024 are liable to be raised before the DRT.
08. Accordingly, the petition stands dismissed.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
vidya
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 03-12-
2024 19:02:22