ANDHRA BANK Vs. DINESH KUMAR AGARWAL

JUDGEMENT

(1.) ON February 6, 1996 Agarwals formed a company by the name of M/s Chetani Exim Pvt. Ltd., the couple Dinesh Kumar Agarwal and Sunita Agarwal became its Directors. Chetani applied for financial support from Andhra Bank. The Bank sanctioned credit facility to the extent of Rs.40 lacs as working capital vide letter dated February 1, 2007. Dinesh and Sunita executed personal guarantee to the extent of Rs.10 lacs and Rs.8 lacs respectively. Agarwals did not adhere to the repayment schedule. The Bank declared the account as non-performing. On October 7, 2009, the Bank served a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as 'SARFAESI' Act. inter alia demanding a sum of Rs.46,97,257.02. The respondent replied to the said notice on November 28, 2009 by contending; the said notice was illegal and as such liable to be quashed. In paragraph 7 (II) of the said letter the learned advocate appearing for Agarwals would contend, "before taking such qusi step under the Act of 2002 the bank ought to have allowed and/or called upon my client to pay balance unpaid amount under compromise settlement which settlement is still in operation and vogue". The Bank replied by letter dated December 9, 2009, the Agarwals never turned up to the branch for any discussion. Chetani replied by letter dated December 24, 2009 asking for time, date and venue for discussing settlement. Nothing happened. The authority waited for about three years and ultimately took physical possession of the flat being the only tangible asset belonging to Agarwals. On November 6, 2012 challenging the action of the Bank for taking possession of the flat in question Agawrals and Chetani filed a writ petition before the learned Single Judge on December 13, 2012. The learned Single Judge allowed the writ petition vide judgment and order dated February 1, 2013 quashing the action taken by the bank under Section 13(4) coupled with liberty to proceed afresh. Being aggrieved, Bank preferred the instant appeal that we heard on April 8, 2013.

(2.) 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 reported in 2006 Volume-II D.R.T.C page-408 Kerala and relied on the decision of the Bombay High Court in the case of Indusind Bank Ltd. Vs. State of Maharashtra reported in All India Reporter 2008 NOC-2474 (Bombay). His Lordship also considered the Apex Court decision in the case of M/s. Transcore Vs. Union of India & Anr. reported in All India Reporter 2007 Supreme Court page-712 and in the case of United Bank of India Vs. Satyawati Tondon & Ors. reported in (2010) Volume-VIII Supreme Court Cases page-110. His Lordship lastly relied on the Apex Court decision in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai reported in 1998 Volume-VIII Supreme Court Cases page-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.) HIS Lordship relied on Section 17(1) of the Criminal Procedure Code that would provide, the High Court in relation to every Metropolis would appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate and under Section 12(1) a Judicial Magistrate to be the Chief Judicial Magistrate. Under Section 3(1)(d), any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area would be construed as a reference to Chief Metropolitan Magistrate. On a combined reading of the said provisions, His Lordship observed, the District Magistrate as mentioned in Section 14 would be seen only as Chief Judicial Magistrate.