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ALLAHABAD HIGH COURT
Ram Surat Ram, J.
Hari Shankar Singh —Appellant
versus
State of U.P. and Ors. —Respondents
Writ C No.2610 of 2018
Decided on 13.2.2018
Held: From the aforesaid cases, it is clear that if power assigned under the statue can be exercised by his successor then, the person cannot be termed as a ‘persona designata’. District Magistrate is appointed under Section 14 of U.P. Land Revenue Act, 1901, while Additional District Magistrate is appointed under Section 14-A. Section 14-A (3) provides that Additional District Magistrate can exercise all the jurisdiction as assigned to him by District Magistrate. Section 14-A (4) provides that the act discharged by Additional District Magistrate as assigned to him under Section 14-A (3) would be act of District Magistrate. Argument in this respect has no force.
Although the argument that Tribunal has not assigned any cogent reason for rejecting the application for interim injunction is correct, but from the facts mentioned above prima facie, it is proved that the petitioner by way of deposit of original title deed created a security in favour of bank of the secured assets on 28.6.2010 as such under the law, the bank is entitled to take possession over the secured assets and sold it, in case the principal debtor has committed default in payment of debt / installment in time. The petitioner has not stated anything in respect of default committed by principal debtor. On the basis of vague allegation, the petitioner tried to say that he had not created any security interest. But the agreement attached along with writ petition shows his signature over it. Thus the petitioner has no prima facie case for grant of interim injunction. This Court in exercise of writ jurisdiction is unable to give any relief to the petitioner. The writ petition has no merit and is dismissed. (Paras 15, 18 and 19)
Result: Writ petition dismissed
Ram Surat Ram, J.—Heard Sri Shailendra Kumar Pandey, for the petitioner and Sri Surbhi Mishra and Sri R.V. Pandey, for the respondent-bank.
2. The writ petition has been filed against the orders of Presiding Officer, Debts Recovery Tribunal, dated 22.12.2017 passed in SA No. 629 of 2017, rejecting the application of the petitioner, for grant of interim injunction, restraining Additional District Magistrate to take physical possession of the secured assets and Additional District Magistrate, dated 31.07.2017, directing, Sub-Divisional Officer to take possession of secured assets and give to Bank of India, if necessary to take help of Police force.
3. M/s Kalawati Mini Rice Mill through its Proprietor Ram Chander Singh (son of Hari Shankar Singh, the petitioner) (respondent-4) applied for Term Loan of Rs. 500000/- and Cash Credit Facility of Rs. 2000000/-. Bank of India (respondent-3) granted aforementioned loan on 28.06.2010. In the loan agreement, Hari Shankar Singh (petitioner) and Sanjay Kumar Gupta (respondent-5) were guarantors. By way of security, the petitioner created an equitable mortgage by deposit of original sale deed, relating to plots 163 (area 12 dhoor) and 167 (area 6 biswa 2 dhoor) situated at village Kalwari Khurd, tahsil and district Mirzapur.
4. It appears that respondent-4 committed default in repayment of loan/installment. The bank, therefore issued demand notice dated 18.04.2015 to the principal debtors and guarantors. When principal debtor or guarantors did not turn up, then Bank gave a notice through publication in newspapers that possession over mortgaged property would be taken on 09.07.2015 under Section 13 (2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act). The bank filed an application (registered as Case No. D2017165302776) under Section 14 of the Act, before District Magistrate Mirzapur, praying to take possession over secure assets and handover to it. District Magistrate, by order dated 28.06.2017, transferred the aforesaid case to Additional District Magistrate, for its disposal. Additional District Magistrate, by impugned order dated 31.07.2017, directed Sub-Divisional Officer to take possession of secured assets and handover to the bank, if necessary to take help of Police force, for which direction has been issued to Superintendent of Police also.
5. The petitioner filed an application (registered as Securitisation Application No. 629 of 2017) under Section 17 of the Act, before Debts Recovery Tribunal. It has been stated by the petitioner that power under Section 14 of the Act can be exercised by District Magistrate or Chief Metropolitan Magistrate, who are a ‘persona designata’. District Magistrate has no jurisdiction to transfer the case to Additional District Magistrate and order passed of Additional District Magistrate dated 31.07.2017 was illegal and without jurisdiction. He had not executed any mortgage deed in favour of the bank, in respect of secured assets. The secured assets were agricultural land and under Section 31 (i) of the Act, no security interest can be created over it. Document dated 28.06.2010 relied upon by the bank cannot be treated a mortgage deed. A mortgage of immovable property of the value more than Rs. 100/- requires registration under Registration Act, 1908. As document dated 28.06.2010 was not a registered document as such no reliance can be placed on it nor it can be enforced against secured assets. Rule 8 (1) of Security Interest (Enforcement) Rules, 2002 provides for service of notice upon the borrower and the guarantors, before taking possession over secured assets but in the present case no such notice has been served upon him. Entire proceedings under Section 13 and 14 were illegal. The petitioner also filed an application for interim injunction in the aforesaid case, restraining the bank and administrative authorities from taking possession over secured asse
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