ANDHRA BANK Vs. DINESH KUMAR AGARWAL

JUDGEMENT

(1.) FACTS :

(2.) ANALYSIS OF THE JUDGMENT AND ORDER OF THE LEARNED SINGLE JUDGE :Learned Judge did not consider the merits of the case. His Lordship considered the provisions of law and ultimately came to the conclusion, the action on the part of the Bank was illegal. Pertinent to note, the Bank approached the Chief Judicial Magistrate, Barasat, 24-Parganas with an application under Section 14 of the SARFAESI Act and obtained an order on September 16, 2011 to take actual physical possession of the immovable properties/secured assets. According to the learned Judge, Section 14 would not empower a Chief Judicial Magistrate to pass such order as the power was vested upon the Chief Metropolitan Magistrate in Metropolis and the District Magistrate in the rest part of the State. Barasat is not a Metropolis nor is Baguihati where the flat is situated. Hence, the Chief Judicial Magistrate did not have any authority under Section 14. The Bank should have approached the District Magistrate, 24-Parganas (North) for appropriate order. His Lordship differed with the view expressed by the Kerala High Court in the case of Solaris Systems (P) Ltd. Vs. Oriental Bank of Commerce,2006 2 DRTC 408 Kerala and relied on the decision of the Bombay High Court in the case of Indusind Bank Ltd. Vs. State of Maharashtra, 2008 AIR(Bom) 2474. His Lordship also considered the Apex Court decision in the case of M/s. Transcore Vs. Union of India & Anr., 2007 AIR(SC) 712 and in the case of United Bank of India Vs. Satyawati Tondon & Ors., 2010 8 SCC 110. His Lordship lastly relied on the Apex Court decision in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai, 1998 8 SCC 1. We are told in a case of the like nature His Lordship in W.P. No. 5968 (w) of 2013 Banani Kar & Anr. Vs. Union of India and Ors, quashed an attempt of the secured creditor on the strength of an order passed by the Chief Judicial Magistrate, 24-Parganas (South) vide judgment and order dated March 8, 2013.

(3.) CONTENTIONS :