NKGSB COOPERATIVE BANK LIMITED Vs. SUBIR CHAKRAVARTY

JUDGEMENT

(1.) The seminal question involved in these cases is: whether it is open to the District Magistrate (for short, "DM") or the Chief Metropolitan Magistrate (for short, "CMM") to appoint an advocate and authorise him/her to take possession of the secured assets and documents relating thereto and to forward the same to the secured creditor within the meaning of Sec. 14(1A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, "2002 Act")?

(2.) The High Court of Judicature at Bombay (for short, "Bombay High Court") vide judgment and order dtd. 6/11/2019 in Writ Petition (L) No.28480 of 2019 opined that the advocate, not being a subordinate officer to the CMM or DM, such appointment would be illegal. Against this decision, four separate appeals [Civil Appeal No... of 2022 @ SLP (Civil) No.30240 of 2019; Civil Appeal No... of 2022 @ SLP (Civil) No.2055 of 2020; Civil Appeal No...of 2022 @ SLP (Civil) No...of 2022 @ Diary No.17059 of 2020; and Civil Appeal No...of 2022 @ SLP (Civil) No...of 2022 @ Diary No.23733 of 2020] have been filed by the concerned parties. On the other hand, the High Court of Judicature at Madras (for short, "Madras High Court") vide judgment and order dtd. 18/3/2020 in C.R.P. No.790 of 2020 has taken a contrary view while following earlier decision of the same High Court on the reasoning that the advocate is regarded as an officer of the court and, thus, subordinate to the CMM or the DM. Having so held, it allowed the civil revision petition filed by the secured creditor (Canara Bank). Against this decision, a special leave petition (SLP (Civil) No.12011 of 2020) has been filed by the borrowers.

(3.) The High Courts of Kerala (in Muhammed Ashraf and Anr. vs. Union of India and Ors. AIR 2009 Kerala 14; The Federal Bank Ltd., Ernakulam vs. A.V. Punnus AIR 2014 Kerala 7; and V.S. Sunitha vs. Federal Bank Ltd. 2018 SCC OnLine Ker 12866), Madras (in S. Chandramohan and Anr. vs. The Chief Metropolitan Magistrate, Egmore, Chennai and Ors. 2014-5-L.W. 620: 2014 SCC OnLine Mad 7869) and Delhi (in Rahul Chaudhary vs. Andhra Bank and Ors. 2020 SCC OnLine Del 284), have taken the same view as in the case of Canara Bank impugned in the special leave petition (see Footnote No.7) arising from the decision of the Madras High Court.