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2005 Supreme(Mad) 1031
High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. MARKANDEY KATJU & THE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLA
M/s.Digivision Electronics Ltd., - Appellant
Versus
Indian Bank & Another - Respondents
W.P.No.13056 of 2005
Decided On : 07 July 2005
The main legal point established in the judgment is the validity of the Securitisation Act, the reasonableness of the pre-deposit requirement under Section 17(2), and the need for the secured creditor to consider and communicate reasons for non-acceptance of objections raised by the borrower to notices under Section 13(2). The judgment also clarified the fee for filing an application under Section 17.
Headnote:
Securitisation Act - Validity of Act upheld, Section 17(2) struck down - Summary of Acts and Sections discussed: Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Securitisation Act) - Sections 13(2), 13(4), 17(1), 17(2), 18-A - The court upheld the validity of the Securitisation Act, except Section 17(2), which requires a pre-deposit of 75% of the amount of demand notice before an appeal can be entertained by a Tribunal. The court also discussed the requirement for the borrower to discharge liabilities within 60 days of notice under Section 13(2), the need for the secured creditor to consider objections raised by the borrower, and the fee for filing an application under Section 17.
Fact of the Case:
The judgment relates to various writ petitions challenging the Securitisation Act. The Supreme Court upheld the Act's validity, except for Section 17(2), which was struck down as unreasonable and violative of Article 14 of the Constitution of India. The court dismissed challenges to notices issued under Section 13(2) and actions taken under Section 13(4) on the ground of alternative remedies.
Finding of the Court:
The court found that the Securitisation Act is valid, except for Section 17(2), which was struck down. Challenges to notices under Section 13(2) and actions under Section 13(4) were dismissed due to the availability of alternative remedies. The court also rejected challenges to the fee for filing an application under Section 17.
Issues: The issues included the constitutional validity of the Securitisation Act, the reasonableness of the pre-deposit requirement under Section 17(2), the consideration of objections raised by the borrower to notices under Section 13(2), and the fee for filing an application under Section 17.
Ratio Decidendi: The court upheld the validity of the Securitisation Act, except for Section 17(2), which was struck down as unreasonable and violative of Article 14. The court emphasized the need for the secured creditor to consider objections raised by the borrower to notices under Section 13(2) and communicate reasons for non-acceptance of objections. The court also upheld the fee for filing an application under Section 17.
Final Decision: The court dismissed all writ petitions and closed connected miscellaneous petitions, vacating interim orders. The court permitted the filing of applications under Section 17 within one month from the date of the judgment, treating them as within limitation if filed within this period.
Markandey Katju, CJ.
All the above writ petitions relate to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Securitisation Act).
2. Various questions of law have been raised in these petitions. By this common judgment we are disposing off all these writ petitions dealing with the points raised in these various petitions. Hence, this judgment will apply to all the above mentioned cases and other cases listed before us, relating to the Securitisation Act.
3. We have heard learned counsel for the parties and have noted their contentions.
4. Before dealing with these contentions we may refer to the decision of the Supreme Court in Mardia Chemicals Ltd. Vs. Union of India, (2004) 4 SCC 311, in which the Supreme Court dealt with the challenge to the validity of various provisions of the Securitisation Act.
5. In Mardia Chemicals Limited Case (supra) it was submitted before the Supreme Court that the Securitisation Act introduces drastic measures for the seizure and sale of properties of the borrowers or taking over of the management or possession of the secured assets. It was submitted that there was no occasion to enact such a draconian legislation to find a short cut to realize the alleged dues without their ascertainment by an adjudicatory authority. It was submitted there is already a special enactment providing for recovery of dues by banks and financial institutions, being the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Hence, it was not necessary to enact another legislation consisting of drastic steps and proceedings, and not providing the debtors with fair opportunity to defend themselves. The Supreme Court rejected this contention holding that “the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of the economy of the country and welfare of the people in general which would subserve the public interest (vide paragraph – 81)”.
6. The Supreme Court quoted from the Narasimham Committee report which stated:
“Banks and financial institutions at present face considerable difficulties in recovery of dues from the clients and enforcement of security charged to them due to the delay in the legal processes. A significant portion of the funds of banks and financial institutions is thus blocked in unproductive assets, the values of which keep deteriorating with the passage of time. Banks also incur substantial amounts of expenditure by way of legal charges which add to their overheads”.
7. In paragraph – 34 of its judgment the Supreme Court observed: -
“It is also a fact that a large sum of amount remains unrecovered. Normal process of recovery of debts through courts is lengthy and time taken is not suited for recovery of such dues. For financial assistance rendered to the industries by the financial institutions, financial liquidity is essential failing which there is a blockade of large sums of amounts creating circumstances which retard the economic progress followed by a large number of other consequent ill effects. Considering all these circumstances, the Recovery of Debts Due to Banks and Financial Institutions Act was enacted in 1993 but as the figures show it also did not bring the desired results. Though it is submitted on behalf of the petitioners that it so happened due to inaction on the part of the Governments in creating Debts Recovery Tribunals and appointing presiding officers, for a long time. Even after leaving that margin, it is to be noted that things in the spheres concerned are desired to move faster. In the present-day global economy it may be difficult to stick to old and conventional methods of financing and recovery of dues. Hence, in our view, it cannot be said that a step taken towards securitisation of the debts and to evolve means for faster recovery of NPAs was not called for
