# Shiv Charan v. Allahabad Bank AMU Branch, Aligarh & Ors

- **Citation:** (2015) 2 ILRA 727
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-06
- **Case number:** C.M.W.P. No. 25953 of 2015
- **Bench:** Tarun Agarwala, Amar Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-charan-v-allahabad-bank-amu-branch-aligarh-ors-43293
- **Pages:** 4

## Headnote

C.S.C., Sri Tarun Verma, Sri J.S. Pandey
Securitisation
and
Reconstruction
of
financial Asset and Enforcement of Security
Interest Act 2002-Section 14 (I)-words and
expressions-word
'shall'
used
heldmandatory-application without affidavitcan not allowed by District Magistratequashed.
Held: Para-10
From the aforesaid decision of the Supreme
Court in Standard Chartered Bank (Supra),
we are of the opinion that the word 'shall'
used in the first proviso to Section 14(1) of
the Act is mandatory. It is an essential
requirement
for
the
Bank
that
the
application filed under Section 14 must be
accompanied by an affidavit duly affirmed
by the authorized officer of the secured
creditor
indicating
the
ingredients
contemplated under sub clause (i) to sub
clause (ix) to the first proviso. Non filing of
the affidavit in our opinion would be fatal.
Case Law discussed:
[2014(6) SCC-1]; [2013(9) SCC 620].

## Text

2 All] Shiv Charan Vs. Allahabad Bank AMU Branch, Aligarh & Ors.
727
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2015
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.
C.M.W.P. No. 25953 of 2015
Shiv Charan
 ...Petitioner
Versus
Allahabad Bank AMU Branch, Aligarh &
Ors.
...Respondents
Counsel for the Petitioner:
Sri Sudhanshu Pandey
Counsel for the Respondents:
C.S.C., Sri Tarun Verma, Sri J.S. Pandey
Securitisation
and
Reconstruction
of
financial Asset and Enforcement of Security
Interest Act 2002-Section 14 (I)-words and
expressions-word
'shall'
used
heldmandatory-application without affidavitcan not allowed by District Magistratequashed.
Held: Para-10
From the aforesaid decision of the Supreme
Court in Standard Chartered Bank (Supra),
we are of the opinion that the word 'shall'
used in the first proviso to Section 14(1) of
the Act is mandatory. It is an essential
requirement
for
the
Bank
that
the
application filed under Section 14 must be
accompanied by an affidavit duly affirmed
by the authorized officer of the secured
creditor
indicating
the
ingredients
contemplated under sub clause (i) to sub
clause (ix) to the first proviso. Non filing of
the affidavit in our opinion would be fatal.
Case Law discussed:
[2014(6) SCC-1]; [2013(9) SCC 620].
(Delivered by Hon'ble Tarun Agarwala, J.)
1.
The petitioner is the guarantor and
father of respondent nos. 5 and 6 who took a
cash credit limit of rupees seventy five lacs in
a partnership firm known as S.R. Tractors in
2012 in which they were the partners. The
petitioner stood guarantee for the cash credit
limit by depositing the title deeds of his
residential house no. 5/298A, Lohia Nagar
Banna Devi, G.T. Road, Aligarh. It transpires
that the accounts of respondent nos. 5 and 6
became NPA on 31.5.2014 pursuant to which
a notice under Section 13(2) of the
Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as the 'Act')
dated 2.6.2014 was issued demanding a sum
of Rs. 44.92 lacs. Thereafter, symbolic
possession under Section 13(4) was also taken
on 29.8.2014. It further transpires that the
respondent bank filed an application dated
30.10.2014 before the District Magistrate
under Section 14 of the Act praying for actual
physical delivery of possession. On this
application, the Additional District Magistrate
(F&R), respondent no. 3 issued an order dated
4.3.2015 for delivery of physical possession
pursuant to which the Additional City
Magistrate, respondent no. 5 issued an order
dated 21.4.2015 fixing 6.5.2015 for taking
physical possession. The petitioner being
aggrieved
by
the
application
of
the
respondents under Section 14 of the Act filed
an application under Section 17 before the
Debt Recovery Tribunal. The Tribunal by an
order dated 1.5.2015 rejected the stay
application relying upon a decision of the
Supreme Court in the case of Harshad
Govardhan
Sondagar
Vs.
International
Reconstruction Company Ltd. and others
[2014 (6) SCC-1] on the ground that the order
under Section 14 of the Act cannot be
challenged on an application under Section 17
of the Act. The petitioner being aggrieved has
filed the present writ petition.
2. We have heard Sri Sudhanshu
Pandey, learned counsel for the petitioner
728
 INDIAN LAW REPORTS ALLAHABAD SERIES
and Sri Tarun Verma for the respondent
bank.
3. Since there is no factual
controversy and only a legal point has to
be decided, we are proceeding to dispose
of the writ petition at the admission stage
itself without calling for a counter
affidavit.
4.
The contention of the learned
counsel for the petitioner is that the District
Magistrate alone can decide the application
under Section 14 of the Act and that there is
no power to delegate it to any subordinate
officer. The second ground urged is that the
application of the bank under Section 14 of
the Act is required to be accompanied by an
affidavit which is mandatory and which has
not been done in the instant case. It was
urged that non filing of the affidavit was fatal
to the disposal of the application under
Section 14 and such application without
being accompanied by an affidavit could not
be allowed.
5. Sri Tarun Verma, learned counsel
for the bank, on instructions received to
him, submitted that the District Magistrate
has full authority and power to delegate
his power to any subordinate officer under
the Act and the mere fact that the
application was not accompanied by an
affidavit, was not fatal to the disposal of
the application since all the ingredients
required in the affidavit were present and
existing in the application. Learned
counsel submitted that non filing of an
affidavit at best could be termed as an
irregularity curable and which was not
fatal to the disposal of the application
under Section 14 of the Act.
6.
Having heard the learned counsel
for the parties, we find that Section 14 (1)
gives power to the District Magistrate or to
the Chief Metropolitan Magistrate to assist
the secured creditor in taking possession of
the secured assets. Section 14 (1A) provides
that the District Magistrate or the Chief
Metropolitan Magistrate may authorize any
officer subordinate to him to take possession
of such assets and document relating thereto
and to forward such assets and documents to
secured creditor. This Sub Section (1A) to
Section 14 of the Act was inserted by Act
No. 1 of 2013. In the light of this provision, it
is clear that the District Magistrate could
delegate the power to any officer subordinate
to him for the purpose of taking possession
of such secured assets to the secured creditor.
In the light of the aforesaid, the submission
of the learned counsel for the petitioner on
this issue cannot be accepted.
7. By Act No. 1/2013 a proviso was
also added to Section
14(1) which
required that where an application is filed
by a secured creditor for the purpose of
taking possession of a secured asset, the
said application shall be accompanied by
an affidavit duly affirmed by the
authorized officer of the secured creditor
which would contain nine ingredients. For
facility, proviso to Section 14(1) is
extracted hereunder:
"Provided that any application by
the
secured
creditor
shall
be
accompanied by an affidavit duly affirmed
by the authorized officer of the secured
creditor, declaring that--
(i)the aggregate amount of financial
assistance granted and the total claim of
the Bank as on the date of filing the
application;
(ii)the borrower has created security
interest over various properties and that
the Bank or Financial Institution is
2 All] Shiv Charan Vs. Allahabad Bank AMU Branch, Aligarh & Ors.
729
holding a valid and subsisting security
interest over such properties and the
claim of the Bank or Financial Institution
is within the limitation period;
(iii)the borrower has created security
interest over various properties giving the
details of properties referred to in subclause (ii) above;
(iv)the borrower has committed
default in repayment of the financial
assistance
granted
aggregating
the
specified amount;
(v)Consequent upon such default in
repayment of the financial assistance the
account of the borrower has been
classified as a non performing asset;
(vi)affirming that the period of sixty
days notice as required by the provisions of
sub-section (2) of section 13, demanding
payment of the defaulted financial assistance
has been served on the borrower.
(vii)The objection or representation
in reply to the notice received from the
borrower has been considered by the
secured creditor and reasons for nonacceptance
of
such
objection
or
representation had been communicated to
the borrower'
(viii)the borrower has not made any
repayment of the financial assistance in
spite of the above notice and the
Authorised Officer, therefore, entitled to
take possession of the secured assets
under the provisions of sub-section (4) of
section 13 read with section 14 of the
principal Act;
(ix)that the provisions of this Act and
the rules made thereunder had been
complied with:
8. This provision was considered by
the Supreme Court in Standard Chartered
Bank Vs. V. Noble Kumar and others
[2013 (9) SCC 620] whereas the Supreme
Court analysed the nine sub clauses of the
proviso indicating that the following
information must be furnished in the
affidavit, namely that there was a loan
transaction under which a borrower is
liable to repay the loan amount with
interest; that there was a security interest
created in a secured asset belonging to the
borrower; that the borrower committed a
default in the repayment; that a notice
contemplated under Section 13(2) was in
fact issued; that in spite of such a notice,
the borrower did not make the repayment;
that the objections of the borrower was
considered and rejected and the reasons
was communicated to the borrower.
9.
The Supreme Court held that this
insertion was done in order to provide
safeguards to the interest of the borrower and
that this provision stipulates that a secured
creditor who is seeking the intervention of the
Magistrate under Section 14 was required to
file an affidavit furnishing the information
contemplated under various sub-clauses (i) to
(ix) of the proviso. The Supreme Court further
held that the affidavit containing the aforesaid
information was necessary as it would
obligate the Magistrate to pass suitable orders
regarding taking and delivery of possession of
the secured asset only after being satisfied
with the contents of the affidavits. The
Supreme Court further held that the
satisfaction of the Magistrate under the second
proviso to Section 14(1) necessarily requires
the Magistrate to examine the factual
correctness of the assertions made in such an
affidavit and only after recording the
satisfaction that the Magistrate could pass
appropriate orders regarding taking of
possession of the secured assets.
10. From the aforesaid decision of
the Supreme Court in Standard Chartered
Bank (Supra), we are of the opinion that the
word 'shall' used in the first proviso to
730
 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 14(1) of the Act is mandatory. It is
an essential requirement for the Bank that the
application filed under Section 14 must be
accompanied by an affidavit duly affirmed
by the authorized officer of the secured
creditor
indicating
the
ingredients
contemplated under sub clause (i) to sub
clause (ix) to the first proviso. Non filing of
the affidavit in our opinion would be fatal.
11. Sri Tarun Verma, learned counsel
for the bank has conceded that in the instant
case no affidavit was filed. Consequently, the
application could not have been allowed by
the District Magistrate.
12. Consequently, for the reasons
stated aforesaid, the impugned order of
the Additional District Magistrate dated
4.3.2015 and the consequential order
dated 21.4.2015 passed by the Additional
City Magistrate being illegal, cannot be
sustained and are hereby quashed. The
writ petition is allowed.
13. It would be open to the respondent
bank to proceed afresh by filing a fresh
application under Section 14 in accordance
with the provisions of the Act.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2015
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
C.M.W.P. No. 33208 of 1990
Love Prasad Dwivedi & Ors.
..Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Rajiv Sharma, Sri Amit Saxena, Sri J.L.
Yadav
Counsel for the Respondents:
S.C., J.P.Nigam
Uttar Pradesh Retirement Benefits Rule
1961-Rule 3(8)-qualifying period of pensionpetitioner promoted on post of ADO on
02.12.88 for 90 days-extended from time to
time
continued
till
regularization
01.02.2000-retired between 31.10.2012 to
31.01.2015-regular
promotion
on
16.11.2012-whether the period of regular
promotion on officiating promotion shall be
counted for qualifying service-held-from the
date
of
officiating
promotion-reasons
discussed.
Held: Para-13-14
13. Proviso to Rule 3(8) itself prescribes
that continuous temporary service without
interruption followed by confirmation shall
count as qualifying service. Thus, it is
wholly immaterial that the service of the
petitioner was regularised on 1.2.2001, as
he was continuously working since the date
of initial appointment. Though earlier his
working
was
against
a
temporary
establishment, as there was no sanctioned
post
but
after
temporary
post
was
sanctioned and later on converted into
permanent post, the service so rendered,
fully qualifies for being counted for purpose
of payment of pension and retiral benefits.
14. For the aforesaid reasons, the Court
finds that the petitioners had rendered
qualifying pensionary service with effect
from the date of his promotion in the
year 1988 and which shall be treated as
service qualifying for pension.
Case Law discussed:
2012 Law Suit (All) 2208; Spl. Appeal No. 445 of
2011; 2006 (8) ADJ 371, 2011 (4) AWC 3564.
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard Shri Amit Saxena, learned
counsel for the petitioners and Shri
Prashant Rai, learned Standing Counsel
for
the
State
respondents.