High Court of Chhattisgarh
Case Details
1 AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.07.30 14:56:39 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:36941 NAFR MCC No. 761 of 2025 1 - Rahul Kumar Mishra S/o Tribhhuwan Prasad Mishra Aged About 32 Years Occupation - Private Job, R/o Pragati Nagar, Near Shiv Mandir,bada Ashok Nagar, Gudhiyari, The. And Dist. Raipur Chhattisgarh 492001
Legal Reasoning
Prima facie, the documents, in the instant case, show that the sixty days have already elapsed much before; therefore, the District Magistrate/respondent No.1 is directed to conclude the proceeding under Section 14 of the SARFAESI Act within a further period of 30 days from the date of receipt of a copy of this order.” 8. For the sake of convenience, Section 14 of the SARFAESI Act, 2002 is quoted below :- "14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.-(1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured assets is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him-- (a) take possession of such asset and documents relating thereto; and (b) forward such assets and documents to the secured creditor: 1[Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorized officer of the secured creditor, declaring that- i. The aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application; ii. The borrower has created security interest over 5 various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period; iii. the borrower has created security interest over various properties giving the details of properties referred to in sub-clause (ii) above; iv. The borrower has committed default in repayment of the financial assistance granted aggregating the specified amount; v. consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a nonperforming asset; vi. affirming that the period of sixty days notice as required by the provisions of sub-section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower: vii. the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower; viii. the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub-section (4) of section 13 read with section 14 of the principal Act; ix. that the provisions of this Act and the rules made thereunder had been complied with: Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets within a period of thirty days from the date of application.] [Provided [also] that if no order is passed by the Chief Metropolitan Magistrate or District Magistrate within the said period of thirty days for reasons beyond his control, he may, after recording reasons in writing for the same, pass the order within such further period but not exceeding in aggregate sixty days.] 6 Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act.] [(1A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,- (i) to take possession of such assets and documents relating thereto; and (ii) to forward such assets and documents to the secured creditor.] (2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate of the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate [any officer authorised by the Chief Metropolitan Magistrate or District Magistrate] done in pursuance of this section shall be called in question in any court or before any authority." 9. As per the applicants herein, they have already approached the DRT against the proceeding under taken as per the Act of 2002 and the same is pending consideration before the DRT. According to them, the DRT has given a liberty to them to deposit the dues by installment. Thus, once the applicants have availed the alternative remedy, this Court, cannot interfere or pass any order in the instant MCC prohibiting the proceeding under Section 14 of the Act, 2002. 10. It is the trite law that when the statutory remedy available under the DRT Act and the Act of 2002, this Court cannot interfere because the same have serious adverse impact on the right of 7 banks and other financial institutions to recover their dues. Even such practice has been deprecated by the Supreme Court in a catena of decisions (Union Bank of India vs. Satyawati Tondon & Ors. [2010] 8 SCC 110). 11. By placing reliance upon the decision rendered in Satyawati Tondon (supra), recently the Supreme Court in the matter of PHR Invent Educational Society vs. UCO Bank & Ors. reported in (2024) 6 SCC 579 reiterated the same view. 12. Applying the well settled principles of law to the facts of the present case and for the reasons mentioned above and also the fact that the matter is pending before the DRT, as the applicants would submit that the DRT passed an order to clear the dues on installments basis. I am of the considered view that no case is made out by the applicants to recall/modify the order dated 20/01/2025 passed in WPC No. 386/2025. 13. Apart from above, the MCC is not the specific provision provided under the law for seeking setting aside or recall or restoration of the order passed by the Court. It is normally filed for modification or some correction in the order on the ground of typographical mistake. 14. As a sequel, the instant MCC is dismissed on merits as also on the ground of maintainability. However, the applicants would be at liberty to raise their grievance with regard to the alleged 8 proceedings under taken by the concerned District Magistrate, if any, before the DRT, if so advised. Sd/- (Bibhu Datta Guru) Judge Gowri/ Amardeep
Arguments
2 - Tribhhuwan Prasad Mishra S/o Shri Shyam Sundar Mishra Aged About 58 Years Occupation - Private Job, R/o Pragati Nagar, Near Shiv Mandir, Bada Ashok Nagar, Gudhiyari, The. Dis. Raipur Chhattisgarh 492001 3 - Smt. Vandana Mishra W/o Tribhhuwan Prasad Mishra Aged About 32 Years Occupation House Wife, R/o Pragati Nagar, Near Shiv Mandir, Bada Ashok Nagar, Gudhiyari, The. And Dis. Raipur Chhattisgarh 492001 4 - Sunil Kol S/o Shri Mohan Kol Aged About 26 Years Occupation- Private Job, R/o Ward No. 10, Kolan Tola, Dalko Kothaar, 288, Papaundh, Sahdol, Dis. Sahdol (M.P.) 484774 versus ... Applicants 1 - Aavas Financiers Limited Through Nischal Pandey S/o Krishna Kumar Pandey Aged About 45 Years, Presently Posted As Branch Manager Aavas Financers Limited Bilaspur, Tehsil And District- Bilaspur, Chhattisgarh. 2 2 - District Magistrate Cum-Collector And Others Bilaspur, District- Bilaspur, Chhattisgarh. ... Respondents For Applicants : Mr. Rahul Rai through V.C. with Mr. Raman (Cause title taken from CIS) Mishra, Advocate For Respondent No.1 : Mr. Jitendra Gupta, Advocate For Respondent/State : Mr. R.C.S. Deo, Panel Lawyer. Hon'ble Shri Bibhu Datta Guru, Judge Order on Board 29/07/2025 1. On a mention being made, the matter is take up for hearing. In fact, in the present case, the office has pointed out a default in respect of its maintainability. 2. By the present MCC, the applicants/respondent Nos.2 to 5 in WPC No.386/2025, seeking restoration of WPC No.386/2025, which was disposed of by order dated 20.01.2025 read with subsequent modification order dated 06/03/2025 passed in MCC No.202/2025. 3. The applicants herein preferred the MCC on the ground that the writ petitioner/respondent No.1 herein has preferred the writ petition by suppressing material facts and sought a direction for initiation of proceeding under Section 14 of the the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act, 2002’) and hence, the order dated passed on 20.01.2025 in WPC No.386/2025 read with the order dated 06.03.2025 passed in MCC No.202/2025 3 deserves to be restored. 4. Learned counsel for the applicants would submit that the order dated 20/01/2025 passed in WPC No. 386/2025 has been passed without hearing the applicants herein as in the said case, no notices were issued to them and as such, they could not point out the facts regarding suppression of material facts by the Writ Petitioner. He would submit that because of the order dated 20.01.2025 passed in WPC No.386/2025, the District Magistrate is proceeding under Section 14 of the Act, 2002 despite the fact that the Debts Recovery Tribunal on the application filed by the applicants herein has given a liberty to them to deposit the dues by installments. 5. On the other hand, learned counsel appearing for the Writ Petitioner would oppose the submission made by the applicants herein. 6. I have heard learned counsel for the parties and perused the pleadings and documents. 7. For ready reference, paragraphs 4 & 5 of the order dated 20/01/2025 passed in WPC No. 386/2025 reads as under:- “4. The SARFAESI Act provides that when Section 14 proceeding is moved, the concerned Officer shall, after satisfying the contents of the affidavit, pass suitable orders for the purpose of taking possession of the secured assets within a period of thirty days from the date of application and, if he fails to do it, then after recording reasons in writing for the same, pass the order within such further period but 4 not exceeding in aggregate sixty days. 5.