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Judgment
Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
Heard the Learned Counsel for the Appellant and perused the record. Despite service none is present for the Respondents. Order dated 08.03.2019 is under challenge wherein the Learned DRT allowed the SARFAESI Application No. 534 of 2015 and quashed the order dated 26.11.2015 passed by Learned District Magistrate Bardhaman.
It appears that a SARFAESI Application was filed by the Respondent (SARFAESI Applicants) alleging that they obtained the credit facilities and they are the borrower and guarantors of the Allahabad Bank. Loan was subsequently assigned to the Appellants. The account was classified as NPA and notice under Section 13(2) of the SARFAESI Act was issued on 12.02.2010. Possession notice under Section 13(4) of the SARFAESI Act was also issued and symbolic possession was taken. It is alleged that the notice under Section 13(2) of the SARFAESI Act is bad in law. Order of the Ld. District Magistrate Bardhaman passed u/s 14 of the SARFAESI Act dated 26.11.2015 is bad in law.
It appears that the Appellant herein filed the opposition challenging the grounds taken in the SARFAESI Application. Learned DRT simply set aside the DMs order and accordingly also allowed the SARFAESI application without recording any finding on the issues raised in the SARFAESI application as well as the opposition made by the Appellant herein.
It is settled legal proposition that all the issues raised by the Applicant which are controverted by the Respondent should have been considered by the Learned DRT.
As far as the impugned order regarding District Magistrate is concerned, it was passed in accordance with law laid down in R.D. Jain and Company versus Capital First Limited and others (2023) 1 SCC 675 wherein it was held that steps to be taken by the DM/CMM u/s 14 of the Act is a ministerial step while disposing of the application u/s 14 of the Act, no element of quasi-judicial function or adjudication is attracted. DM/CMM has to adjudicate and decide the correctness of information given in the application and nothing more. Therefore, Section 14 of the Act does not involve an adjudicatory process qua points raised by borrower against secured creditor taking possession of secured asset. Judgement of R.D. Jain (supra) was reiterated by the Honble Apex Court in Balkrishna Rama Tarle Vs. Phoenix ARC Pvt. Ltd. & Anr. [(2023) 1 SCC 662] wherein it was held that Section 14 of the Act does not involve any adjudicatory process qua points raised by the borrower against the secured creditor taking possession of the secured assets. One of the requirements of Section 14 of the Act is to reflect his satisfaction and it is the duty cast upon the DM/CMM to assist the secured creditor in obtaining possession of the secured assets, CMM/DM is not required to adjudicate the dispute between borrower and secured creditor and/ or between any other third party and secured with respect to secured assets.
Further, Learned DRT has not recorded any finding or the ground taken by the SARFAESI Applicant in the application under Section 17 of the SARFAESI Act. Hence, the impugned order could not sustain. Accordingly, Appeal is liable to be allowed.
ORDER
Appeal is allowed. Impugned order dated 08.03.2019 is set aside. Matter is remanded back to the Learned DRT-II Kolkata to decide the S.A. No. 534 of 2015 afresh after affording an opportunity of hearing to the parties in accordance with law.
All the pending I.As. stands disposed of. No Order as to costs.
File be consigned to Record Room.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
Copy of the Judgment/ Final Order be uploaded in the Tribunals Website.
Order signed and pronounced by me in the open Court on this the 11h day of March, 2024.