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2026 Supreme(Online)(Guj) 1276
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M. R. Mengdey, J
WELL MAKE PLY INDUSTRIES THROUGH ITS PARTNER MR. PRAVINBHAI MAVJIBHAI PATEL AND OTHERSV/sSTATE OF GUJARAT
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 16301 of 2025
For the Appellants/Petitioners: Alok M Thakkar
For the Respondents: Hardik Soni
The court examined the mandatory requirement of issuing a notice under Section 13(4) of the SARFAESI Act before initiating Section 14 proceedings and the jurisdictional authority for rural properties, granting an interim stay on the lower court's order.
Headnote:The matter pertains to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, specifically Sections 13(4) and 14. The petitioners challenge an order passed by the Additional Chief Judicial Magistrate for the appointment of a Court Commissioner, contending that the mandatory notice under Section 13(4) was not issued and that for properties located in rural areas, the application should have been filed before the District Collector rather than the Magistrate. The court noted that the procedural compliance of Section 13(4) must be verified before passing orders under Section 14. The primary issues involve whether the issuance of notice under Section 13(4) is a mandatory prerequisite for initiating proceedings under Section 14 and whether the appointment of a Court Commissioner is recognized under the SARFAESI Act or the Bharatiya Nagrik Suraksha Sanhita, 2023. The court observed that the arguments regarding jurisdictional errors and the absence of a legal basis for appointing a Court Commissioner in criminal jurisprudence require further consideration. Till then, the execution, implementation and operation of the order dated 09.10.2025 passed by the learned Addl. Chief Judicial Magistrate, Petlad in Criminal Misc. Application (J) No.305 of 2025 as well as the impugned notice dated 20.11.2025 issued by the alleged Court Commissioner is hereby stayed.
| Table of Content |
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| 1. challenges to the mandatory nature of section 13(4) notices, jurisdictional authority for rural properties, and the legality of appointing court commissioners under sarfaesi and bnss. (Para 1) |
| 2. granting of interim stay on lower court orders and notices pending further judicial consideration of the merits. (Para 2 , 3) |
ORAL ORDER
1. Learned advocate appearing for the petitioners submit that before initiation of the proceedings under Section 14 of the SARFAESI Act , the respondent no.2 has to issue notice under Section 13(4) of the SARFAESI Act , which is mandatory in nature. Admittedly, in the present case, the respondent no.2 has straightway without issuing notice under Section 13(4) of the SERFAESI Act, has filed an application under Section 14 of the Act before the Court of learned Addl. Chief Judicial Magistrate, and the learned Chief Judicial Magistrate, has passed an order below the said application without considering the above stated factual aspect of the matter, and therefore, the said order is required to be quashed and set aside. He further submits that as per the relevant provisions of law, when the property of the applicant which is mortgaged is located within the rural area, in that event, the application ought to have been made before the District Collector and not before the Addl. Chief Judicial Magistrate. He also submits that before passing the order, the court concerned has to verify from the papers that compliance as envisaged under Section 13(4) of the SARFAESI Act are followed or not.
1.1 Learned advocate Mr. Thakkar further submits that even there is no concept of appointing Court Commissioner either in the SARFAESI Act or in the Bharatiya Nagrik Suraksha Sanhita, 2023 . He has also submits that pursuant to the impugned order passed by the Magistrate, ordering appointment of Court Commissioner, the Court Commissioner also came to be appointed, who then issued notice to the applicant, and immediately upon receipt of such notice, the applicant has approached this Court by way of filing the present application.
1.2. Learned advocate Mr. Thakkar submits that there is an error in passing the impugned order and then on the basis of the same, issuing notice to the applicant by the Court Commissioner, as the concept of Court Commissioner has always been treated as alien so far as criminal jurisprudence is concerned. Thus, there is a mandatory requirement of issuing notice under Section 13(4) of the SARFAESI Act before initiation of the proceedings under Section 14 of the said Act, and in the absence of same being issued in the present case, the impugned order passed, and the subsequent notice pursuant thereto, are null and void and required to be quashed, and till then, are also required to be stayed from its operation.
2. Considering the aforesaid submissions, the matter requires consideration. Hence, issue Notice, making it returnable on 16.03.2026. Learned APP waives service of notice for and on behalf of the respondent State.
3. Till then, the execution, implementation and operation of the order dated 09.10.2025 passed by the learned Addl. Chief Judicial Magistrate, Petlad in Criminal Misc. Application (J) No.305 of 2025 as well as the impugned notice dated 20.11.2025 issued by the alleged Court Commissioner is hereby stayed. Direct service is permitted.
