2022 Supreme(AP) 868
C. PRAVEEN KUMAR, TARLADA RAJASEKHAR RAO
Chandramala Enterprises Pvt. – Appellant
Versus
Punjab National Bank – Respondent
Advocates:
Advocate Appeared:
For the Petitioner: Radha Krishna Lankisetti.
For the Respondent: Hanumantha Rao Bachina.
Judgement Key Points
Based on the provided legal document, here are the key points:
- The Petitioners (M/s Sri Chandramala Enterprises Pvt. Ltd.) are lessees of the schedule property and have taken the house property on lease from Respondent No. 5. (!)
- Respondent No. 1 (Punjab National Bank) initiated proceedings under the SARFAESI Act against Respondent No. 2, leading to a dispute where a neighbor alleged part of their property was included in the proceedings. (!)
- The Debt Recovery Tribunal (DRT) dismissed the neighbor's appeal (S.A. No. 144 of 2015) and a subsequent application (I.A. No. 811 of 2018) for default on 19.06.2019. (!)
- A restoration application (M.A. No. 87 of 2020) was filed by the neighbor on 29.09.2020 regarding the dismissed appeal, but the bank did not inform the Magistrate about this pending restoration when re-entrusting the warrant. (!)
- An Advocate Commissioner executed a warrant to break open and take possession of the Petitioners' locked premises on 23.03.2022 without permission from the Court. (!)
- The Petitioners filed an objection petition on 04.05.2022, which was returned by the Magistrate as not maintainable under Section 17(4A) of the SARFAESI Act. (!)
- The Respondents argued that the Petitioners have no locus standi as they are merely lessees and third parties to the lis. (!) (!)
- Section 14 of the SARFAESI Act is an enabling provision allowing secured creditors to request the Chief Metropolitan Magistrate (CMM) or District Magistrate (DM) for possession, with a statutory limit for the Magistrate to pass an order within 30 days (extendable by another 30 days). (!)
- Judicial precedent establishes that if a CMM imposes a time limit for taking possession, it must be mandatorily adhered to; otherwise, the appropriate course is to re-approach the CMM for an extension. (!)
- If a warrant is not executed within the fixed time limit, possession cannot be taken under the same warrant. (!)
- While some judgments suggest warrants are "open-ended" and do not lapse automatically unless returned or cancelled, specific orders in this case fixed a one-month execution period with a cancellation clause if not executed. (!) (!) (!)
- The original order of 15.07.2015 directed the Commissioner to execute the warrant within one month, failing which the authority to execute would stand cancelled. (!)
- The re-entrustment of the warrant on 04.03.2022 occurred seven years later without a formal application seeking extension of time or reasons for the delay. (!) (!)
- The Court held that the Magistrate cannot automatically postpone a warrant; an application with reasons is required for an extension or a fresh warrant. (!)
- The Court found the procedure followed by the Court regarding the re-entrustment of the warrant defective as no application was made to extend the time. (!)
- The High Court exercises jurisdiction under Articles 226 and 227 of the Constitution of India to examine decisions of the CMM/DM, despite provisions in the SARFAESI Act attempting to attach finality to such decisions. (!)
- The Court directed the Respondents to restore the possession of the disputed property to the Petitioner (if required) and to make a fresh application under Section 14 of the Act after the pending restoration petition in the DRT is resolved. (!)
- The Writ Petition was disposed of with no order as to costs. (!)
ORDER :
1. The circumstances, which lead to filing of the present Writ Petition, are as under:
(i) The Petitioners Company is a registered Private Limited Company incorporated under the Companies Act, and doing business in General Manufacturing Trade/Retail-Storage in wholesale and retail and trading commodities of paddy, pulses, rice, coal and all Biomassi, in the name and style of M/s. Sri Chandramala Enterprises Private Limited. The Petitioners Company took the house property, on lease, bearing No. 18-10-11 and 18-10-11/2, Marellavari Street, Bheemavaram, West Godavari District, from Respondent No. 5.
(ii) It is said that, Respondent No. 1 bank initiated proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, [‘SARFAESI Act’] against Respondent No. 2. Aggrieved by the same, one of the neighbours of the subject property preferred an Appeal before the Debt Recovery Tribunal, Visakhapatnam, vide S.A. No. 144 of 2015, alleging that a part of their property is also included in the SARFAESI proceedings. The Debt Recovery Tribunal appointed an Advocate Commissioner for the purpose of demarcating the subject property. However,
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