# THE AUTHORISED OFFICER, INDIAN BANK v. D. VISALAKSHI AND ANR

- **Citation:** [2019] 13 S.C.R. 177
- **Court:** Supreme Court of India
- **Decided:** 2019-09-23
- **Case number:** Civil Appeal Nos. 6295 of 2015
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-authorised-officer-indian-bank-v-d-visalakshi-and-anr-33245
- **Pages:** 47

## Headnote

Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 - s.14 - Chief Judicial
Magistrate (CJM) u/s. 14 - Competency of - There were conflicting
views of different High Courts regarding the competency of the CJM
to process the request of the secured creditors to take possession of
the secured asset u/s. 14 of the 2002 Act - The High Courts of
Bombay, Calcutta, Madras, Madhya Pradesh and Uttarakhand
interpreted the said provision to mean that only Chief Metropolitan
Magistrate (CMM) in metropolitan areas and the District Magistrate
(DM) in non-metropolitan areas were competent to deal with such
request - However, the High Courts of Kerala, Karnataka,
Allahabad and Andhra Pradesh took a contrary view of the same
provision, to mean that it does not debar or preclude the CJM in the
non-metropolitan areas to exercise power u/s. 14 of the 2002 Act -
On appeal, held: The powers and functions of the CMM and the
CJM are equivalent and similar, in relation to matters specified in
the Cr.P.C - These expressions (CMM and CJM) are interchangeable
and synonymous to each other - Moreover, s.14 does not explicitly
exclude the CJM from dealing with the request of the secured creditor
made thereunder - The power to be exercised u/s.14 of the 2002
Act by the concerned Authority is, by its very nature, non-judicial
or State's coercive power - Taking totality of all the aspects, there
is nothing wrong in giving expansive meaning to the expression
'CMM', as inclusive of CJM concerning non-metropolitan area,
who is otherwise competent to discharge administrative as well as
the Judicial functions as delineated in the Cr.P.C. on same terms as
CMM - Therefore, the CJM is equally competent to deal with the
application moved by the secured Creditor u/s. 14 of the Act -
Accordingly, the view taken by the High Courts of Kerala,
Karnataka, Allahabad and Andhra Pradesh were upheld and
approved.
 [2019] 13 S.C.R. 177
177
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 - ss. 14, 35 and 37 -
Code of Criminal Procedure, 1973 - Does Provisions of the 2002
Act override the provisions of the Cr.P.C, whereunder the functions
to be discharged by the CMM are similar to that of the CJM - Held:
The expressions 'CMM' and 'CJM' are used interchangeably in Cr.
P.C. and are considered as synonymous to each other - s.14, even
if read literally, in no manner denotes that allocation of jurisdictions
and powers to CMM and CJM under the Code of Criminal Procedure
are modified by the 2002 Act - Thus understood, s.14 of the 2002
Act, stricto sensu, cannot be construed as being inconsistent with
the provisions of the Code of Criminal Procedure or vice-versa in
that regard - Further, s.37 of the 2002 Act predicates that the
provisions of the 2002 Act or the Rules made thereunder shall be in
addition to the stated enactments or "any other law for the time
being in force" - Having said that the Provisions of the s.14 of the
2002 Act are in no way inconsistent with the provisions of the Code
of Criminal Procedure, it must then follow that the provisions of the
2002 Act are in addition to and not in derogation of the Code.
Disposing of the appeals, the Court
HELD: 1. Be it noted that Section 14 of the Securitisation
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 is not a provision dealing with the
jurisdiction of the Court as such. It is a remedial measure available
to the secured creditor, who intends to take assistance of the
authorised officer for taking possession of the secured asset in
furtherance of enforcement of security furnished by the borrower.
The authorised officer essentially exercises administrative or
executive functions, to provide assistance to the secured creditor
in terms of State's coercive power to effectuate the underlying
legislative intent of speeding the recovery of

## Text

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THE AUTHORISED OFFICER, INDIAN BANK
v.
D. VISALAKSHI AND ANR.
(Civil Appeal Nos. 6295 of 2015)
SEPTEMBER 23, 2019
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 - s.14 - Chief Judicial
Magistrate (CJM) u/s. 14 - Competency of - There were conflicting
views of different High Courts regarding the competency of the CJM
to process the request of the secured creditors to take possession of
the secured asset u/s. 14 of the 2002 Act - The High Courts of
Bombay, Calcutta, Madras, Madhya Pradesh and Uttarakhand
interpreted the said provision to mean that only Chief Metropolitan
Magistrate (CMM) in metropolitan areas and the District Magistrate
(DM) in non-metropolitan areas were competent to deal with such
request - However, the High Courts of Kerala, Karnataka,
Allahabad and Andhra Pradesh took a contrary view of the same
provision, to mean that it does not debar or preclude the CJM in the
non-metropolitan areas to exercise power u/s. 14 of the 2002 Act -
On appeal, held: The powers and functions of the CMM and the
CJM are equivalent and similar, in relation to matters specified in
the Cr.P.C - These expressions (CMM and CJM) are interchangeable
and synonymous to each other - Moreover, s.14 does not explicitly
exclude the CJM from dealing with the request of the secured creditor
made thereunder - The power to be exercised u/s.14 of the 2002
Act by the concerned Authority is, by its very nature, non-judicial
or State's coercive power - Taking totality of all the aspects, there
is nothing wrong in giving expansive meaning to the expression
'CMM', as inclusive of CJM concerning non-metropolitan area,
who is otherwise competent to discharge administrative as well as
the Judicial functions as delineated in the Cr.P.C. on same terms as
CMM - Therefore, the CJM is equally competent to deal with the
application moved by the secured Creditor u/s. 14 of the Act -
Accordingly, the view taken by the High Courts of Kerala,
Karnataka, Allahabad and Andhra Pradesh were upheld and
approved.
 [2019] 13 S.C.R. 177
177
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 - ss. 14, 35 and 37 -
Code of Criminal Procedure, 1973 - Does Provisions of the 2002
Act override the provisions of the Cr.P.C, whereunder the functions
to be discharged by the CMM are similar to that of the CJM - Held:
The expressions 'CMM' and 'CJM' are used interchangeably in Cr.
P.C. and are considered as synonymous to each other - s.14, even
if read literally, in no manner denotes that allocation of jurisdictions
and powers to CMM and CJM under the Code of Criminal Procedure
are modified by the 2002 Act - Thus understood, s.14 of the 2002
Act, stricto sensu, cannot be construed as being inconsistent with
the provisions of the Code of Criminal Procedure or vice-versa in
that regard - Further, s.37 of the 2002 Act predicates that the
provisions of the 2002 Act or the Rules made thereunder shall be in
addition to the stated enactments or "any other law for the time
being in force" - Having said that the Provisions of the s.14 of the
2002 Act are in no way inconsistent with the provisions of the Code
of Criminal Procedure, it must then follow that the provisions of the
2002 Act are in addition to and not in derogation of the Code.
Disposing of the appeals, the Court
HELD: 1. Be it noted that Section 14 of the Securitisation
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 is not a provision dealing with the
jurisdiction of the Court as such. It is a remedial measure available
to the secured creditor, who intends to take assistance of the
authorised officer for taking possession of the secured asset in
furtherance of enforcement of security furnished by the borrower.
The authorised officer essentially exercises administrative or
executive functions, to provide assistance to the secured creditor
in terms of State's coercive power to effectuate the underlying
legislative intent of speeding the recovery of the outstanding dues
receivable by the secured creditor. At best, the exercise of power
by the authorised officer may partake the colour of quasi-judicial
function, which can be discharged even by the Executive
Magistrate. The authorised officer is not expected to adjudicate
the contentious issues raised by the concerned parties but only
verify the compliances referred to in the first proviso of Section
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14; and being satisfied in that behalf, proceed to pass an order to
facilitate taking over possession of the secured assets.
[Para 40][216-C-F]
2. It is well established that no Civil Court can interdict
the action initiated in respect of any matter, which a Debt Recovery
Tribunal or Debt Recovery Appellate Tribunal is empowered by
or under the 2002 Act, to determine and in particular, in respect
of any action taken or to be taken in pursuance of any power
conferred by or under the 2002 Act or under the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993. That
has been ordained by Section 34 of the 2002 Act. [Para 41]
[216-F-G]
3. The construction of s.35 of the 2002 Act provision plainly
indicates that the provisions of the Act will override any other
law for the time being in force. The question is: does the
provisions of 2002 Act override the provisions of the Cr. P.C.,
whereunder the functions to be discharged by the CMM are
similar to that of the CJM. Further, the expressions "CMM and
CJM" are used interchangeably in Cr.P.C. and are considered
as synonymous to each other. Section 14, even if read literally, in
no manner denotes that allocation of jurisdictions and powers to
CMM and CJM under the Code of Criminal Procedure are
modified by the 2002 Act. Thus understood, Section 14 of the
2002 Act, stricto sensu, cannot be construed as being inconsistent
with the provisions of the Code of Criminal Procedure or viceversa in that regard. If so, the stipulation in Section 35 of the
2002 Act will have no impact on the expansive construction of
Section 14 of the 2002 Act. Whereas, there is force in the
submission canvassed by the secured creditors (Banks), that
Section 37 of the 2002 Act answers the issue under consideration.
The bare text of Section 37 predicates that the provisions of the
2002 Act or the Rules made thereunder shall be in addition to
the stated enactments or "any other law for the time being in
force". Having said that the provisions of the Section 14 of the
2002 Act are in no way inconsistent with the provisions of Code
of Criminal Procedure, it must then follow that the provisions of
the 2002 Act are in addition to, and not in derogation of the Code.
[Para 43][217-B-E, G-H]
THE AUTHORISED OFFICER, INDIAN BANK v.
D. VISALAKSHI AND ANR.
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[2019] 13 S.C.R.
4. Suffice it to observe that keeping in mind the subject
and object of the 2002 Act and the legislative intent and purpose
underlying Section 14 of the 2002 Act, contextual and purposive
construction of the said provision would further the legislative
intent. In that, the power conferred on the authorised officer in
Section 14 of the 2002 Act is circumscribed and is only in the
nature of exercise of State's coercive power to facilitate taking
over possession of the secured assets. [Para 44][218-A-B]
5. Applying the principle underlying in Janardhan vs. State
of Maharashtra it must follow that substitution of functionaries
(CMM as CJM) qua the administrative and executive or so to
say non-judicial functions discharged by them in light of the
provisions of Cr.P.C., would not be inconsistent with Section 14
of the 2002 Act; nay, it would be a permissible approach in the
matter of interpretation thereof and would further the legislative
intent having regard to the subject and object of the enactment.
That would be a meaningful, purposive and contextual
construction of Section 14 of the 2002 Act, to include CJM as
being competent to assist the secured creditor to take possession
of the secured asset. [Para 46][222-E-F]
6. To sum up, this Court holds that the CJM is equally
competent to deal with the application moved by the secured
creditor under Section 14 of the 2002 Act. This Court accordingly,
uphold and approve the view taken by the High Courts of Kerala,
Karnataka, Allahabad and Andhra Pradesh and reverse the
decisions of the High Courts of Bombay, Calcutta, Madras,
Madhya Pradesh and Uttarakhand in that regard. Resultantly, it
is unnecessary to dilate on the argument of prospective
overruling pressed into service by the secured creditors (Banks).
[Para 48][222-G-H; 223-A]
Muhammed Ashraf and Anr. v. Union of India (UOI)
and Others AIR (2009) Ker. 14; Radhakrishnan, V.N.
v. State of Kerala and Anr. MANU/KE/0677/2008 (Cr.
M.C. No.4369 of 2008 dated 20.11.2008); Kaveri
Marketing v. The Saraswathi Co-op. Bank Ltd. 111
(2013) BC 582; M/s T.R. Jewellery and Another v. State
Bank of India and Another AIR (2016) A.P. 125 (FB);
Abhishek Mishra v. State of U.P. and Others. AIR (2016)
All. 210 - approved.
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IndusInd Bank Ltd., (formerly known as Ashok Leyland
Finance Ltd.) through its Legal Executive,
Ravindrakumar Prakash Bhargodev v. The State of
Maharashtra through Police Station 2008 (110) BOM
LR 2880 (decided on 22.04.2008); Arjun Urban Cooperative Bank Ltd., Solapur v. Chief Judicial
Magistrate, Solapur and Ors. 2009 (5) Mh. L.J. 380;
Dinesh Kumar Agarwal v. State of West Bengal 2013
(1) CHN 671; K. Arockiyaraj v. The Chief Judicial
Magistrate, Srivilliputhur Virudhunagar District and
The Housing Development Finance Corporation Limited
AIR (2013) Mad. 206; T.C. Ramadoss and Ors. v. The
Chief Manager & Authorised Officer State Bank of India
and Ors. AIR (2015) Mad. 67; Shyam Sunder Rohra v.
IndusInd Bank AIR (2017) M.P. 36; Deepak Aggarwal
v. State of Uttarakhand and Others MANU/UC/0012/
2012; Andhra Bank and Ors. v. Sri Dinesh Kumar
Agarwal and Ors. (2013) 4 CHN 95 - not approved.
Shankarlal Aggarwal and Ors. v. Shankarlal Poddar
and Ors. AIR (1965) SC 507; Municipal Corporation
of Delhi v. Shiv Shanker (1971) 1 SCC 442 : [1971] 3
SCR 607; Ratan Lal Adukia v. Union of India (1989) 3
SCC 537 : [1989] 3 SCR 440;
Kishorebhai
Khamanchand Goyal v. State of Gujarat and Another
(2003) 12 SCC 274 : [2003] 5 Suppl. SCR 1;
M/s. Unique Butyle Tube Industries Pvt. Ltd. v. U.P.
Financial Corporation and Ors. AIR (2003) SC 2103 :
[2002] 5 Suppl. SCR 666; Delhi Financial Corpn. and
Another v. Rajiv Anand and Others (2004) 11 SCC 625;
A.N. Roy, Commissioner of Police and Another v. Suresh
Sham Singh (2006) 5 SCC 745 : [2006] 3 Suppl. SCR
165; Standard Chartered Bank v. V. Noble Kumar and
Others (2013) 9 SCC 620 : [2013] 10 SCR 762; Shree
Bhagwati Steel Rolling Mills v. Commissioner of Central
Excise and Another. (2016) 3 SCC 643 : [2015] 12 SCR
332; Authorized Officer, State Bank of Travancore and
Others. v. Mathew K.C. (2018) 3 SCC 85 : [2018] 1
SCR 233; Commissioner of Customs (Import), Mumbai
v. Dilip Kumar and Company and Others (2018) 9 SCC
THE AUTHORISED OFFICER, INDIAN BANK v.
D. VISALAKSHI AND ANR.
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
1 : [2018] 7 SCR 1191; Sindhi Education Society and
Another v. Chief Secretary, Government of NCT of Delhi
and Others (2010) 8 SCC 49 : [2010] 8 SCR 81; Rani
Kusum (Smt.) v. Kanchan Devi (Smt.) and Others (2005)
6 SCC 705 : [2005] 2 Suppl. SCR 752; Vinay Tyagi v.
Irshad Ali Alias Deepak and Others (2013) 5 SCC 762
: [2012] 13 SCR 1005; Vishal N. Kalsaria v. Bank of
India and Others (2016) 3 SCC 762 : [ 2016] 1 SCR
419; State of A.P. v. Polamala Raju Alias Rajarao (2000)
7 SCC 75 : [2000] 2 Suppl. SCR 329; Sri Nasiruddin
v. State Transport Appellate Tribunal (1975) 2 SCC 671
: [1976] 1 SCR 505; Bhudan Singh and Another v. Nabi
Bux and Another (1969) 2 SCC 481 : [1970] 2 SCR
10; K.P. Varghese v. Income Tax Officer, Ernakulam and
Another (1981) 4 SCC 173 : [1982] 1 SCR 629; Atma
Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284 :
[1988] 2 Suppl. SCR 528; M/s. Girdhari Lal and Sons
v. Balbir Nath Mathur and Others (1986) 2 SCC 237 :
[1986] 1 SCR 383; Mardia Chemicals Ltd. and Others
v. Union of India and Others (2004) 4 SCC 311 : [2004]
3 SCR 982; Transcore v. Union of India and Another
(2008) 1 SCC 125 : [2006] 9 Suppl. SCR 785; Bank of
India v. Pankaj Dilipbhai Hemnani and Others AIR
2007 Guj. 201; Solaris Systems Pvt. Ltd. and Another
v. Oriental Bank of Commerce and Another I.L.R. 2006
Ker 645; Bangalore Water Supply and Sewerage Board
v. A. Rajappa and Others (1978) ILLJ 349 SC; NEPC
Micon Ltd. v. Magna Leasing Ltd. 1999 CriLJ 2883;
Inco Europe Ltd. and Ors. v. First Choice Distribution
(a firm) and Ors. 1999 CriLJ 2883; Padmasundara
Rao and Others v. State of Tamil Nadu and Others
(2002) 255ITR 147 (SC); National Insurance Co. Ltd.
v. Laxmi Narain Dhut 2007 (2) KLT 470 (SC); Reserve
Bank of India and Others v. Peerless General Finance
and Investment Company Ltd. and Another (1996) 1
SCC 642 : [1996] 1 SCR 58; Kehar Singh and Others
v. State (Delhi Admn.) (1988) 3 SCC 609 : [1988] 2
Suppl. SCR 24 ; Mathew Varghese v. M. Amritha Kumar
and Others (2014) 5 SCC 610 : [2014] 2 SCR 736;
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Trade Well and Another v. Indian Bank and Another
(2007) Cri. LJ 2544; Ronit Nirman Pvt. Ltd. v. State
Bank of India and Others A.S.T. 1337 of 2011 (dated
18th October, 2011); K. R. Chandrasekaran v. Union
of India 2012 (2) CWC 115; Indian Overseas Bank v.
Sree Aravindh Steels Ltd. 2009 (1) CTC 341; Official
Liquidator Uttar Pradesh and Uttarakhand v. Allahabad
Bank and Others (2013) 4 SCC 381 : [2013] 4 SCR
207; Indian Administrative Service (S.C.S.) Association,
U.P. and Others v. Union of India (1993) Supp. 1 SCC
730 : [1992] 2 Suppl. SCR 389; Nasiruddin and Others
v. Sita Ram Agarwal (2003) 2 SCC 577 : [2003] 1 SCR
634; High Court of Gujarat and Another v. Gujarat
Kishan Mazdoor Panchayat and Others (2003) 4 SCC
712 : [2003] 2 SCR 799; Prakash Kumar Alias Prakash
Bhutto v. State of Gujarat (2005) 2 SCC 409 : [2005] 1
SCR 408; New India Assurance Company Ltd. v. Nusli
Neville Wadia and Another (2008) 3 SCC 279 : [2007]
13 SCR 598 - referred to.
Harshad Govardhan Sondagar v. International Assets
Reconstruction Company Limited and Others (2014) 6
SCC 1 : [2014] 11 SCR 605 - distinguished.
All India Judges' Association and Others v. Union of
India and Others (2002) 4 SCC 247 : [2002] 2 SCR
712; Janardhan v. State of Maharashtra (1978) 2 SCC
465 : [1978] 3 SCR 586 - relied on.
Holmes v. Bradfield Rural District Council 1949 (1) All
ER 381; Seaford Court Estates Ltd. v. Asher (1949) 2
All ER 155; M. Pentiah v.. Muddala Veeramallapa
[1961] 2 SCR 295 - referred to.
Case Law Reference
AIR (2009) Ker. 14
approved
Para 3
2008 (110) BOM LR 2880
(decided on 22.04.2008)
not approved
Para 5
2009 (5) Mh. L.J. 380
not approved
Para 5
THE AUTHORISED OFFICER, INDIAN BANK v.
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
111 (2013) BC 582
approved
Para 6
2013 (1) CHN 671
not approved
Para 6
AIR (2013) Mad. 206
not approved
Para 6
AIR (2015) Mad. 67
not approved
Para 6
AIR (2017) M.P. 36
not approved
Para 6
(2013) 4 CHN 95
not approved
Para 6
AIR (2016) A.P. 125 (FB)
approved
Para 7
AIR (2016) All. 210
approved
Para 7
AIR (1965) SC 507
referred to
Para 11
[1971] 3 SCR 607
referred to
Para 11
[1989] 3 SCR 440
referred to
Para 11
[2003] 5 Suppl. SCR 1
referred to
Para 11
[2002] 5 Suppl. SCR 666
referred to
Para 11
(2004) 11 SCC 625
referred to
Para 11
[2006] 3 Suppl. SCR 165
referred to
Para 11
[2013] 10 SCR 762
referred to
Para 11
[2015] 12 SCR 332
referred to
Para 11
[2018] 1 SCR 233
referred to
Para 11
[2018] 7 SCR 1191
referred to
Para 11
[2002] 2 SCR 712
relied on
Para 14
[2010] 8 SCR 81
referred to
Para 15
[2005] 2 Suppl. SCR 752
referred to
Para 15
[2012] 13 SCR 1005
referred to
Para 15
[2016] 1 SCR 419
referred to
Para 17
[2000] 2 Suppl. SCR 329
referred to
Para 17
[1976] 1 SCR 505
referred to
Para 17
[1970] 2 SCR 10
referred to
Para 17
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185
[1982] 1 SCR 629
referred to
Para 17
[1988] 2 Suppl. SCR 528
referred to
Para 17
[1986] 1 SCR 383
referred to
Para 17
[2004] 3 SCR 982
referred to
Para 21
[2006] 9 Suppl. SCR 785
referred to
Para 21
AIR 2007 Guj. 201
referred to
Para 21
I.L.R. 2006 Ker 645
referred to
Para 21
1949 (1) All ER 381
referred to
Para 21
(1949) 2 All ER 155
referred to
Para 21
(1961) 2 SCR 295
referred to
Para 21
(1978) ILLJ 349 SC
referred to
Para 21
1999 CriLJ 2883
referred to
Para 21
(2002) 255ITR 147 (SC)
referred to
Para 21
2007 (2) KLT 470 (SC)
referred to
Para 21
[1996] 1 SCR 58
referred to
Para 21
[1988] 2 Suppl. SCR 24
referred to
Para 21
[2014] 2 SCR 736
referred to
Para 22
(2007) Cri. LJ 2544
referred to
Para 25
2012 (2) CWC 115
referred to
Para 28
2009 (1) CTC 341
referred to
Para 29
[2013] 4 SCR 207
referred to
Para 29
[1992] 2 Suppl. SCR 389
referred to
Para 29
[2003] 1 SCR 634
referred to
Para 29
[2003] 2 SCR 799
referred to
Para 29
[2005] 1 SCR 408
referred to
Para 29
[2007] 13 SCR 598
referred to
Para 29
[2014] 11 SCR 605
distinguished
Para 38
[1978] 3 SCR 586
relied on
Para 45
THE AUTHORISED OFFICER, INDIAN BANK v.
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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6295
of 2015.
From the Judgment and Order dated 27.08.2013 of the Madurai
Bench of Madras High Court in Writ Petition being W.P. (MD) No.
7155 of 2012.
 With
Civil Appeal Nos. 7554-7555, 7557, 7558, 7560-7561 of 2019,
Criminal Appeal Nos. 900, 945, 1463-1464, 1465, 1478, 1466, 1467,
1468, 1469, 1470, 1471, 1472, 1473, 1475, 1476, 1477 of 2019.
Dhruv Mehta, Sudhivasudevan, Jaideep Gupta, Jayanth Muthraj,
Sr. Advs., Himanshu Munshi, Manish Garani, Avinash Kumar Bharti,
Sanjay Kapur, Ms. Megha Karnwal, Bharath Gangadharan, Kauser
Husain, Ms. Shubhra Kapur, V. Balaji, MSM Asaithambi, C. Kannan,
Rakesh K. Sharma, Sriram P., M. S. Vishnu Shankar, Anshuman Ashok,
G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Ms. Beena Prakash,
Garvesh Kabra, Ms. Pooja Kabra, A. C. Philip, Rajvardhan Singh, Rabin
Majumder, P. V. Dinesh, Ms. Sindhu T. P., Mukund P. Unny, Bineesh K.,
Lakshman R. S., Ashwini Kumar Singh, Hiren Dasan, Uday Gupta, Chand
Qureshi, Harish Dasan, M. K. Tripathi, Ananga Bhattacharyya, Rohit
Rao N., Ms. Devahuti Tamuli, Shourya Garg, M/S Veritas Legis, Govind
Manoharan, Manu Krishnan, A. Karthik, B. Sulaiman, Biju P Raman,
Ms. Usha Nandini V., Roy Abraham, Ms. Reena Roy, Ms. Seema Jain,
Akhil Abraham, Himinder Lal, Kuriakose Varghese, Divyam Agarwal,
Ms. Piyusha Singh, M/s. KMNP Law, P. V. Yogeswaran, Ashish Kumar
Upadhyay, Y. Lokesh, Babul Kumar, Dr. Lalit Bhasin, Ms. Nina Gupta,
Ms. Palak Chadha, Dhawal Jain, Mudit Sharma, V. Prabhakar, Ms. Jyoti
Parasher, N. J. Ramchandar, S. Rajappa, Rajesh Kumar-I, Anant
Gautam, Anmol Mehta, Ms. Sakshi Gaur, Ms. Khushboo Aggarwal (for
M/S. Mitter & Mitter Co.), E. Easwaran, Sajith P. Warrier, Haris Beeran,
Mushtaq Salim, Usman Ghani Khan, Radha Shyam Jena, K. Rajeev,
Sarfaraz Khan, Firasat Ali Siddiqui, Arvind Kumar, Vijay Pal, Ram Swarup
Sharma, Janendra Lal, Ms. Yasmin Tarapore, M/S. Janendra Lal & Co.,
P. I. Jose, Ms. P. S. Chandralekha, Philip K. Varghse, Aravindh S., Sanjay
Kapur, Bharath Gangadharan, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Delay condoned. Leave granted in Special Leave Petitions.
2. The seminal question involved in these appeals is: whether the
Chief Judicial Magistrate (for short, "CJM") is competent to process
the request of the secured creditor to take possession of the secured
asset under Section 14 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (for
short, "2002 Act")? There are conflicting views of different High Courts
on this question. The High Courts of Bombay, Calcutta, Madras, Madhya
Pradesh and Uttarakhand have interpreted the said provision to mean
that only the Chief Metropolitan Magistrate (for short, "CMM") in
metropolitan areas and the District Magistrate (for short, "DM") in nonmetropolitan areas are competent to deal with such request. On the
other hand, the High Courts of Kerala, Karnataka, Allahabad and Andhra
Pradesh have taken a contrary view of the same provision, to mean that
it does not debar or preclude the CJM in the non-metropolitan areas to
exercise power under Section 14 of the 2002 Act.
3. The earliest decision is of the Division Bench of the High Court
of Kerala at Ernakulam in Muhammed Ashraf and Anr. Vs. Union of
India (UOI) and Others1. The Court noted that Section 14 of the 2002
Act expressly refers to CMM in relation to metropolitan areas and DM
for non-metropolitan areas. It then went on to observe that as the powers
and functions of CJM in non-metropolitan areas and CMM in metropolitan
areas are one and the same (with only difference that CMM exercises
powers in metropolitan areas and CJM in non-metropolitan areas); and
the expression CJM and CMM are interchangeably used namely, one is
synonymous for the other depending on the area under its jurisdiction, by
interpretative process, it concluded that in non-metropolitan areas, apart
from DM, the CJM is also competent to exercise powers under Section
14 of the 2002 Act. This decision was carried in appeal before this Court
being SLP (C) No.1671 of 2009 which, however, came to be dismissed
on 2nd February, 2009 as no ground to interfere with the impugned
judgment was made out.
1 AIR (2009) Ker. 14
THE AUTHORISED OFFICER, INDIAN BANK v.
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4. Soon thereafter, another Division Bench of the High of Kerala
in Radhakrishnan, V.N. Vs. State of Kerala and Anr.2, reiterated the
view taken in Muhammed Ashraf (supra) and declined to refer the
matter to a full bench for reconsideration.
5. However, around the same time, the High Court of Bombay
(Aurangabad Bench) in IndusInd Bank Ltd., (formerly known as
Ashok Leyland Finance Ltd.) through its Legal Executive,
Ravindrakumar Prakash Bhargodev Vs. The State of Maharashtra
through Police Station3, had taken a diametrically opposite view. It had
held that it is not open to substitute the word, "CMM" for "CJM". For,
there is no indication in the 2002 Act that the legislature had intended to
empower the CJM outside the metropolitan areas, although the judicial
officer (CMM) was entrusted with the power to deal with such request
in the metropolitan areas. Again in Arjun Urban Co-operative Bank
Ltd., Solapur Vs. Chief Judicial Magistrate, Solapur and Ors. 4,
another Division Bench of the High Court of Bombay opined that Section
14 of the 2002 Act, in no univocal terms, constricts the exercise of powers
only by the CMM or DM, as the case may be.
6. However, in 2013, the High Court of Karnataka in Kaveri
Marketing Vs. The Saraswathi Co-op. Bank Ltd.5took the same view
as taken by the High Court of Kerala that the CJM can also exercise
powers under Section 14 of the 2002 Act. But the Single Judge of the
High Court of Calcutta in Dinesh Kumar Agarwal Vs. State of West
Bengal6and the full bench of Madras High Court in K. Arockiyaraj Vs.
The Chief Judicial Magistrate, Srivilliputhur Virudhunagar District
and The Housing Development Finance Corporation Limited7 took
a different view as taken by the High Court of Bombay and held that the
CMM or DM, as the case may be, alone can exercise powers under
Section 14 of the 2002 Act. Later, the High Court of Madras in T.C.
Ramadoss and Ors. Vs. The Chief Manager & Authorised Officer
State Bank of India and Ors.8, the High Court of Madhya Pradesh in
2 MANU/KE/0677/2008 (Cr. M.C. No.4369 of 2008 dated 20.11.2008)
3 2008 (110) BOM LR 2880 (decided on 22.04.2008)
4 2009 (5) Mh. L.J. 380
5 111 (2013) BC 582
6 2013 (1) CHN 671
7 AIR (2013) Mad. 206
8 AIR (2015) Mad. 67
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Shyam Sunder Rohra Vs. IndusInd Bank 9, the High Court of
Uttarakhand at Nainital in Deepak Aggarwal Vs. State of Uttarakhand
and Others10 and the Division Bench of the High Court of Calcutta in
Andhra Bank and Ors. Vs. Sri Dinesh Kumar Agarwal and Ors.11also
held that CMM or DM, as the case may be, alone can exercise power
under Section 14 of the 2002 Act.
7. Whereas, the High Court of Judicature at Hyderabad for the
State of Telangana and the State of Andhra Pradesh in M/s T.R. Jewellery
and Another Vs. State Bank of India and Another12 and the High
Court of Allahabad in Abhishek Mishra Vs. State of U.P. and Others.13,
by interpretative process opined that even the CJM was competent to
exercise powers under Section 14 of the 2002 Act.
8. The borrowers or the persons claiming through borrowers, would
contend that literal interpretation of Section 14 of the 2002 Act must be
preferred. In which case, the secured creditor can seek assistance "only"
of CMM in metropolitan areas and DM in non-metropolitan areas, for
the purpose of taking over possession of the secured asset or property
(instead of resorting to recovery of property by other means). As the
provision is univocal, it cannot be interpreted in any other manner. To do
so would entail in doing violence to the legislative intent. There is
presumption that Parliament had complete knowledge of the existing
laws and was conscious of the distinction or similarity between the scope
of powers to be exercised by the CMM, DM and CJM, as the case may
be, in terms of the provision of Cr.P.C. and other laws. Despite such
awareness, the parliament consciously chose to identify clearly, the
authority which can entertain the application(s) of the secured creditor
under Section 14 of the 2002 Act. In that sense, the provision is in the
nature of defining the authority persona designata, namely CMM and
DM for the concerned area.
9. If so, contends the learned counsel, it is not open for the Court
to take recourse of interpretative process to include another authority
such as CJM merely because the functions discharged by the CJM and
CMM under the Cr.P.C. and other laws are similar. There is no room for
9 AIR (2017) M.P. 36
10 MANU/UC/0012/2012
11 (2013) 4 CHN 95
12 AIR (2016) A.P. 125 (FB)
13 AIR (2016) All. 210
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invoking the doctrine of Casus Omissus in light of the unambiguous
provision in the form of Section 14 of the 2002 Act. Thus, the similarity
of functions discharged by the CMM and CJM under the Cr.P.C. would
be of no avail. Rather, the Court must follow the maxim "cum inverbis
nulla ambiguitas est, non debet admitti voluntatis quaestio" and prefer
the plain language of the statute. To demonstrate the distinction between
the hierarchy of the judicial officers, reliance has been placed on a chart
which clearly distinguishes them on the basis of their functions as nonJudicial Magistrate and Judicial Magistrate in the concerned area. The
office of DM essentially discharges executive functions and comes within
the non-Judicial Magistrate category. On the other hand, the office of
CMM or CJM would involve both executive and judicial functions. This
distinction is crucial and it must be presumed that the Parliament was
conscious about this distinction. It is also urged that the Parliament in
various Acts, including the Sick Industrial Companies (Special Provision)
Act, 1985 - Section 29, Banking Regulation Act, 1949 - Section 45S,
Industrial Reconstruction Bank of India, 1984 - Section 51, National
Housing Bank Act, 1987 - Section 36-H, Companies Act, 1956 - Section
10FP, Companies Act, 2013 - Section 429 and Small Industries
Development Bank of India Act, 1989 - Section 39, have enacted similar
provisions empowering CMM/DM, for seeking assistance to take
possession of the property sold or leased.
10. It is urged that taking any other view would require re-writing
of Section 14 of the 2002 Act and in the process doing violence to the
legislative intent. That must be eschewed. It is urged that in
contradistinction to the expression used in Section 14 "CMM" and "DM",
Section 30 of the same Act (2002 Act) refers to the authority as
"Metropolitan Magistrate" or a "Judicial Magistrate", as the case may
be for taking cognizance of offences punishable under the Act.
11. To buttress the above submissions, reliance is placed on
Shankarlal Aggarwal and Ors. Vs. Shankarlal Poddar and Ors.14,
Municipal Corporation of Delhi Vs. Shiv Shanker15, Ratan Lal
Adukia Vs. Union of India16, Kishorebhai Khamanchand Goyal Vs.
State of Gujarat and Another17, M/s. Unique Butyle Tube Industries
14 AIR (1965) SC 507
15 (1971) 1 SCC 442
16 (1989) 3 SCC 537
17 (2003) 12 SCC 274
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Pvt. Ltd. Vs. U.P. Financial Corporation and Ors.18, Delhi Financial
Corpn. and Another Vs. Rajiv Anand and Others 19, A.N. Roy,
Commissioner of Police and Another Vs. Suresh Sham Singh 20,
Standard Chartered Bank Vs. V. Noble Kumar and Others 21,
Harshad Govardhan Sondagar Vs. International Assets
Reconstruction Company Limited and Others22, Shree Bhagwati
Steel Rolling Mills Vs. Commissioner of Central Excise and
Another.23, Authorized Officer, State Bank of Travancore and Others.
Vs. Mathew K.C.24, Commissioner of Customs (Import), Mumbai
Vs. Dilip Kumar and Company and Others25.
12. Per contra, the secured creditors (Banks) and auction
purchasers would commend us with the view taken by the High Courts
of Kerala, Andhra Pradesh, Allahabad and Karnataka. According to
them, the process under Section 14 of the 2002 Act can be invoked by
the secured creditor only for taking possession of the secured assets.
The application is required to be filed by the secured creditor supported
by an affidavit stating due compliances of the stipulations provided
therefor. The inquiry envisaged under Section 14 of the 2002 Act, to be
undertaken by the CMM or DM, is minimal and basic in nature. It is only
to satisfy itself about the factual position stated by the secured creditor
in the concerned application including the appended affidavit filed
therewith. It is not an adjudicatory process muchless to decide about the
rights and liabilities of the contesting parties. The nature of inquiry is
essentially one of exercise of administrative or executive powers. SubSection (1A) enables the DM or CMM to authorise any officer
subordinate to him to take possession.
13. The CMM and CJM are clothed withpowers as per the scheme
of Cr.P.C.. The office of CMM and CJMareinterchangeable and they
discharge similar functions in their respective jurisdictions namely,
metropolitan and non-metropolitan areas, as the case may be. The recent
enunciation of this Court expounds that the inquiry requires judicious
18 AIR (2003) SC 2103
19 (2004) 11 SCC 625
20 (2006) 5 SCC 745
21 (2013) 9 SCC 620
22 (2014) 6 SCC 1
23 (2016) 3 SCC 643
24 (2018) 3 SCC 85
25 (2018) 9 SCC 1
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approach. Therefore, it could be effectively exercised by CJM in a nonmetropolitan area. There is no express provision in the 2002 Act, so as
to disregard the dispensation under the Cr.P.C., concerning the exercise
of powers by the CMM and CJM respectively. On the other hand, Section
37 of the 2002 Act makes it amply clear that the application of provisions
of Cr.P.C. is not completely ruled out. Section 37 of the 2002 Act
postulates that the application of other laws in force would continue to
apply and the provisions of 2002 Act or the Rules made thereunder shall
be in addition thereto and not in derogation thereof.
14. It is urged that the 2002 Act does not define the term "CMM"
or "DM". Reliance is then placed on Section 2(k) of Cr.P.C. which
defines the expression "metropolitan area" and Section 3 of Cr.P.C.
which defines the expression "CMM" or "DM". The adjudicatory process
like sifting of evidence, trial etc. is required to be undertaken only by a
Judicial Magistrate. The Executive Magistrate can exercise only executive
powers. Indisputably, the powers of CJM in non-metropolitan area and
CMM in metropolitan area are equal and those terms are used as
synonymous. Additionally, reliance is placed on Section 12 of Cr.P.C.
concerning the Judicial Magistrate and Additional Judicial Magistrate,
Section 14 concerning local jurisdiction, Section 16 and 17 concerning
courts of Metropolitan Magistrate, CMM and Additional Chief
Metropolitan Magistrate respectively. Section 20 of Cr.P.C. deals with
the office of Executive Magistrates. Relying on the exposition of this
Court in All India Judges' Association and Others Vs. Union of India
and Others26, it is urged that incontrovertibly the post of CJM and CMM
must be equated and they have to be placed in the same cadre of Civil
Judge (Senior Division). Reliance is also placed on Standard Chartered
Bank (supra), to contend that there is no difference in the jurisdiction or
powers exercisable by the CJM and CMM, except operating in different
territorial area. It is thus urged that expressions "CMM/DM" in Section
14 be construed as also including "CJM" in a non-metropolitan area.
15. Reliance is then placed on Sindhi Education Society and
Another Vs. Chief Secretary, Government of NCT of Delhi and
Others27, Rani Kusum (Smt.) Vs. Kanchan Devi (Smt.) and Others28
26 (2002) 4 SCC 247
27 (2010) 8 SCC 49
28 (2005) 6 SCC 705
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and Vinay Tyagi Vs. Irshad Ali Alias Deepak and Others29, to buttress
the submission that Section 14 of the 2002 Act must receive a construction
which would advance the cause of justice and legislative object sought
to be achieved. A purposive interpretation of Section 14 as including the
office of CJM in a non-metropolitan area would further the legislative
intent as it would enable the secured creditor to approach the CJM to
take possession of the secured assets thereat.
16. It is urged that the borrowers or the persons claiming through
borrowers, cannot be heard to make any grievance, if the application
filed under Section 14 is dealt with by a judicial mind; and moreso because
the nature of inquiry to be undertaken is circumscribed. In that, it is
merely verification of compliances by the secured creditor. In any case,
the aggrieved borrower has a statutory remedy of appeal against the
order passed by the CJM as would be available against the order passed
by CMM/DM. Similarly, all contentious issues available to the borrowers
or the persons claiming through them could be raised by them even
before the CJM, who would be equally competent to deal with the same
as would be done by the CMM/DM, as per law. Considering the fact
that the CMM and CJM both discharge similar functions and are treated
equivalent for all purposes in the respective territorial jurisdictions, it is
not a case of application being processed by someone who is inferior
and not competent or qualified to do so.
17. To buttress the above submissions reliance is placed on Vishal
N. Kalsaria Vs. Bank of India and Others30, State of A.P. Vs.
Polamala Raju Alias Rajarao31, Sri Nasiruddin Vs. State Transport
Appellate Tribunal32, Bhudan Singh and Another Vs. Nabi Bux and
Another33, K.P. Varghese Vs. Income Tax Officer, Ernakulam and
Another34, Atma Ram Mittal Vs. Ishwar Singh Punia35 and M/s.
Girdhari Lal and Sons Vs. Balbir Nath Mathur and Others36.
29 (2013) 5 SCC 762
30 (2016) 3 SCC 762
31 (2000) 7 SCC 75
32 (1975) 2 SCC 671
33 (1969) 2 SCC 481
34 (1981) 4 SCC 173
35 (1988) 4 SCC 284
36 (1986 2 SCC 237
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18. It is also urged that in certain States, the functions of the DM
are discharged by the Deputy Commissioner of the State such as in the
State of Jharkhand. Therefore, the interpretation put forth by the High
Courts that application under Section 14 of the 2002 Act can also be
moved before the CJM in a non-metropolitan area, would sub-serve the
interests of all concerned and also effectuate the legislative intent of
expeditious resolution of matters under the 2002 Act without intervention
of the Court. Lastly, it is urged that if this Court upholds the view taken
by the concerned High Courts that CJM is not competent to deal with
the action under Section 14 of the 2002 Act, this Court may invoke the
doctrine of prospective overruling and save all the orders passed by the
CJM's to this end.
19. We have heard Mr. Dhruv Mehta, Mr. Sudhivasudevan, Mr.
Jaideep Gupta and Mr. Jayanth Muthraj, Senior Advocates, Mr. Kuriakose
Varghese, Mr. A. Karthik, Mr. E. Easwaran, Mr. Sajith P. Warrier Mr.
Govind Manoharan, Ms. Nina Gupta, Mr. Roy Abraham, Mr. Philip K.
Varghse, Mr. Rakesh K. Sharma, Mr. Radha Shyam Jena, Mr. Himanshu
Munshi, Mr. Ram Swarup Sharma, and Mr. Mudit Sharma, Advocates.
20. We deem it apposite to reproduce Section 14 of the 2002 Act.
The same reads thus:
"14.