IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SHEEL NAGU &

HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH rd ON THE 3 OF JULY, 2023 WRIT PETITION No. 11721 of 2022 BETWEEN:-

BANDHAN BANK LIMITED A BODY CORPORATE CONSTITUTED UNDER THE COMPANIES ACT 2013 HAVING ITS HEAD OFFICE AT FLOORS 12 -14, ADVENTZ INFINITY @ 5, SECTOR V, SALT LAKE CITY, KOLKATA-700091 & ONE OF ITS REGIONAL OFFICE AT 119-121, AKANSHA COMPLEX, FIRST FLOOR, NAVBHARAT PRESS, M.P. NAGAR, ZONE-1 BHOPAL, ACTING THROUGH ITS AUTHORIZED OFFICER MR.

ANURAG SEN S/O JAGDISH SEN.

.....PETITIONER (BY SHRI SACHIN SEN - ADVOCATE)

AND THE ADDITIONAL DISTRICT MAGISTRATE RAISEN COLLECTORATE DISTRICT RAISEN (MADHYA

1.

PRADESH)

SHRI SANTOSH KUMAR JAIN S/O SHRI TOSHANLAL JAIN PLOT NO. 185, (SURVEY NO. 751/1, 752, 753/1, 754, 2. 755, 772, 775, 776) WARD NO. 10, PH NO. 10, INDRA COLONY, BEGAMGANJ, DISTRICT RAISEN (MADHYA PRADESH)

SMT. REKHA JAIN W/O SHRI SANTOSH KUMAR JAIN PLOT NO. 185, (SURVEY NO. 751/1, 752, 753/1, 754, 755, 772, 3.

775, 776) WARD NO. 10, PH NO. 10, INDRA COLONY, BEGAMGANJ, DISTRICT RAISEN (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI PIYUSH JAIN – GOVERNMENT ADVOCATE FOR STATE)

This petition coming on for admission this day, JUSTICE SHEEL NAGU passed the following:

ORDER

This petition challenges the legality and validity of the Ex. P/8 , impugned order dated 29.10.2021 passed by the Additional District Magistrate, Raisen whereby an application u/S. 14 of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, preferred by the petitioner- Bank has been rejected. Relevant extract of the impugned order is as follows :-

^^izdj.k layXu nLrkostksa dk voyksdu ,oa v/;;u rFkk euu fd;k x;kA izdj.k esa mYysf[kr cdk;k _.k jkf”k dk Li"V rjhds ls mYys[k ugha gksus rFkk rFkk vukosndx.k 01] larks"k dqekj tSu vk- rks"kuyky tSu ¼_.kh½ 02] Jherh js[kk tSu iRuh larks"k dqekj tSu IykV ua- 185 751@1] 752] 753@1] 754] 755] 772] 775] 776½ okMZ u-a 10 i-g-u- 10] bUnzk dkWyksuh csxexat rglhy csxexat] ftyk jk;lsu ¼e-iz-½ }kjk mDr ca/kd laifRr izLrqr dh xbZ gSA mDr ca/kd laifRr vU; Hkwfe Lokfe ds uke ls ntZ ds dkj.k HkkSfrd vkf/kiR; esa fn;k tkuk U;k; dh ea'kk ds foijhr gksxkA vr% izLrqr vkosnu i= vk/kkjghu gksus ls fujLr fd;k tkrk gSA mHk;i{k lwfpr gkasA bl U;k;ky; dk izdj.k nk;jk iath ls de gksdj lafpr vfHkys[kkxkj gksA**

(emphasis supplied)

2. In view of above, it is obvious that the Additional District Magistrate has entered into merits of the matter by recording a finding that the secured asset is registered in the name of some other person and since it is in possession of that person, it would be against the principles of law to exercise power u/S. 14 of the SARFAESI Act, 2002.

3. Section 14 of the SARFAESI Act, 2002 is an enabling provision prescribing one of the means for enforcing the security interest without intervention of Court/ Tribunal. However, the District Magistrate while exercising his power u/S. 14 of the Act cannot enter into merits of the matter as explained by the Apex Court in Balkrishna Rama Tarle Dead through L.R.s and another Vs. Phoenix Arc Private Limited and others; [2022] 13 S.C.R. 437; Kotak Mahindra Bank Limited Vs. Girnar Corrugators Private Limited and others, (2023) 3 SCC 210; R.D. Jain and Company Vs. Capital First Limited and others, (2023) SCC 675; Authorised Officer, Indian Bank Vs. D. Visalakshi and another, (2019) 20 SCC 47; and Standard Chartered Bank Vs. V. Noble Kumar and others, (2013) 9 SCC 620 wherein the Apex Court while culling out the intent of Section 14 held thus :-

Kotak Mahindra Bank Limited (supra)

“ 33. Even otherwise the Naib Tehsildar was not at all justified in not taking possession of the secured assets / properties as per order dated 24.09.2014 passed by the District Magistrate under Section 14 of the SARFAESI Act. The order passed by the Naib Tehsildar refusing to take possession of the secured assets / properties despite the order passed under Section 14 of the SARFAESI Act