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Arshad Ispat vs Union Of India on 29 May, 2020 cites

Itc Limited vs Blue Coast Hotels Ltd. . on 19 March, 2018

10. One of the questions raised by the petitioners insofar as the invocation of Section 14 by the fourth respondent-Bank subsequent to the auction sale in favour of the sixth respondent, has been answered by the Apex Court in the case of ITC Limited Vs. Blue Coast Hotels (supra). It has been held "that even though the entire right, title and interest were purported to have been transferred, all the rights, transfer and interest could not be said to have been transferred since the possession of the property was not transferred to creditor. The possession was retained by the debtor who continued 13 to do business and receive rent from the rooms on the property and has in fact continued to do so till date. There is no doubt that after taking over the property from debtor, the creditor also acquired the right to receive the usufruct of the property i.e., the rent in this case. However, this was an interest in the property which was not at any point of time transferred to the auction purchaser." It was noticed that in that case the creditor did not have actual possession of the secured asset but only a constructive or symbolic possession. It was therefore held that the transfer of the secured asset by the creditor therefore cannot be construed to be a complete transfer as contemplated by Section 8 of the Transfer of Property Act. The creditor nevertheless had a right to take actual possession of the secured asset and must therefore be held to be a secured creditor even after the limited transfer to the auction purchaser under the agreement. Thus, the entire interest in the property not having been passed to the creditor in the first place, the creditor in turn could 14 not pass on the entire interest to the auction purchaser and thus remained a secured creditor in the Act.
Supreme Court of India Cites 45 - Cited by 123 - S A Bobde - Full Document

M/S Transcore vs Union Of India & Anr on 29 November, 2006

5. Sri X.M.Joseph, learned Counsel appearing for the petitioners submits that the declaration of the account/asset of the petitioners as NPA is in total defiance of the RBI Master Circular which have 7 statutory effect and contrary to the decisions of the Apex Court in the case of Transcore Vs. Union of India and Another (2008) 1 SCC 125 and Keshavlal Khemchand and Sons Private Limited and Others Vs. Union of India and Others (2015) 4 SCC 770. The learned Counsel further submits that the fourth respondent-Bank having sold the property in question to the sixth respondent, was incompetent to invoke the provision of Section 14 of SARFAESI Act, to request the Chief Metropolitan Magistrate or the District Magistrate to seek aid to take physical possession of the secured property. It is further submitted that the designated authority under Section 14 of SARFAESI Act, is not required to either issue notice or adjudicate the correctness of the claim for possession made by the secured creditor as the designated authority is performing only an executive work and not a judicial work and it is for this reason that since the designated authority is not conferred with jurisdiction either to form subjective satisfaction about the claim of the secured creditor or to 8 adjudicate the bonafides, correctness or otherwise of either the classification of asset as NPA by any secured creditor for securitization purposes or request made for assistance to take physical possession, and since the element of principles of natural justice similar to Section 32G of the State Financial Corporations Act, 1951, is not inbuilt, the prayer for declaring Section 6(c) of the Enforcement of Security Interest and Recovery of Debt Laws (Amendment) Act, 2012, is made by the petitioners.
Supreme Court of India Cites 74 - Cited by 539 - Full Document

Keshavlal Khemchand And Sons Pvt Ltd And ... vs Union Of India And Ors on 28 January, 2015

Insofar as the other limb of the argument of the learned Counsel for the petitioners that the declaration made by the fifth respondent declaring the account/assets of the petitioners NPA, the Apex Court in the case of Keshavlal Khemchand (supra) has clearly opined that the borrower cannot be heard to complain that defining of the conditions subject to which the creditor could classify the account as NPA, is part of the essential legislative function. The argument regarding excessive delegation was rejected as untenable. Moreover, the petitioners having failed to raise the issue when it could have done so in its previous writ petition i.e., W.P.Nos.9687-89/2017, the petitioners are estopped from raising such an issue subsequently. In this regard, the law is well settled that the provisions of Order II Rule 2 of CPC is applicable to writ proceedings also and when a party could have raised an issue and having failed to raise 15 such an issue, cannot be permitted to raise such an issue subsequently in another proceeding. It is to be noticed that in W.P.Nos.9687-89/2017, the petitioners questioned the sale proceedings initiated by the fourth respondent-Bank. Obviously the account/assets of the petitioners were declared NPA and thereafter the Bank has proceeded in accordance with law and the sale proceedings having been challenged by the petitioners in the year 2016-2017, this issue could have been raised, but, the petitioners have failed to do so. Even in these proceedings, it is only at the last moment that an application for additional prayer was made by the petitioners regarding the correctness of the classification of petitioners account/asset as NPA. Therefore, the petitioners are not entitled for any such relief.
Supreme Court of India Cites 42 - Cited by 47 - Full Document
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