The main legal point established in the judgment is that a secured creditor seeking assistance under Section 14(1) of the NPA Act is not required to be armed with a decree from a competent court or DRT, and the roles of Chief Metropolitan Magistrate and District Magistrate in providing such assistance were clarified.

Oral Judgment (Per: Dabholkar, J.)

1. Rule. By consent of learned counsel for the parties, rule made returnable forthwith and matter is taken up for final disposal. Heard learned counsel for the petitioner and learned APP for the Respondent.

2. Both matters can be considered and disposed of, by common order, because the issue involved in both the matters, is common.

3. The Petitioner has approached this court, feeling aggrieved by the orders passed by the learned Chief Judicial Magistrate, Aurangabad, ("CJM" for short) on 4.3.2008 in Criminal M.A. Nos.231 and 232 of 2008. Suffice it to say that the petitioner-bank had approached the CJM with applications under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("NPA Act" for brevity’s sake). The applications are rejected by learned CJM with common line of reasons and we quote the observations:

"..................Therefore, by this application, Petitioner has prayed for assistance in taking possession of secured assets. Heard learned counsel for the applicant. He relied on 2007 (1) Bom.C.R. (Cri.) 783. On perusal of judgment cited it is seen that there was decree passed by D.R.T. in favour of said Petitioner, who had prayed for such assistance in taking possession of secured assets by filing application before C.M.M. Admittedly, in our case nowhere Petitioner has come with the case that, he has obtained decree in his favour from competent court D.R.T. and in execution of same he is in need of assistance of this criminal Court."

4. Because of the writ petitions filed by the petitioner, we are required to consider the issue;

"Whether, a creditor requesting assistance under Section 14(1) of the NPA Act is required to be armed with a decree for recovery of dues from the borrower, from competent court or D.R.T.?"

It appears that the judgment rendered by Division Bench at Bombay of this High Court, in the matter of Trade Well and another vs. Indian Bank and another, 2007 (1) Bom.C.R. (cri.) 783, was placed before the learned CJM and reading the facts from that judgment, the learned CJM has taken a view that in the reported matter, there was a decree passed by DRT in favour of the creditor therein (respondent in that writ petition) and because the present writ petitioner, who is creditor and seeking assistance from the CJM for taking possession of secured assets as under Section 14(1) (a) of the NPA Act, is not armed with a decree against the borrower, from the competent court or DRT, the learned CJM felt that the present petitioner is not entitled to assistance of the CJM for taking possession of the secured assets. At present, we are concerned with these observations of the learned CJM.

5. During the course of his submissions, Advocate Shri S.S.Gangakhedkar, has submitted that on going through the entire judgment in the matter of Trade Well supra) (supra), it appears that the court has not laid down a ratio as understood by the CJM i.e. assistance under Section 14(1) of the NPA Act cannot be availed by a creditor, unless he is armed with a decree of competent court/DRT. Learned APP Shri Dighe, upon going through the judgment, has accepted this position.

Even on going through opening part of the judgment, we can gather as to what question court was dealing with. We quote:

"The question which arises in these writ petitions is whether while dealing with written request made by a secured creditor under section 14 of Financial Assets and Enforcement of Security Interest Act (for short, "the NPA Act"), the Chief Judicial Magistrate or the District Magistrate as the case may be is required to give notice to the borrower or any person who may be in possession of secured asset and give him a hearing ?"

As the court was seized only of this question and no other issue, the observations of the court on any other issue will have to be treated as "obiter dictum" and not "ratio decidendi" decidendi".

The court has recorded its ten

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