TMI Blog2009 (4) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... Enforcement of Security Interest Act. (hereinafter referred to as the said Act for the sake of brevity). Since the appellants did not comply with the notice issued by the respondent No. 3 bank, an application came to be filed by the said bank before the District Magistrate, Aurangabad, for taking action under Section 14 of the said Act. The respondent No. 2 passed an order and allowed the application under Section 14 of the said Act. Accordingly, a notice was issued on 1/1/2009 by the Naib Tahsildar, directing the appellants to hand over the possession of the property owned by the appellants. Challenging the said notice, a writ petition bearing No. 81/2009 came to be filed by the appellants. The same came to be dismissed. Hence, the present appeal. 4. Shri Sapkal, learned Counsel appearing on behalf of the appellants submits that the powers under Section 14 are to be exercised by the District Magistrate alone. He submits that in the present case, the powers are not exercised by the District Magistrate, but the same are exercised by the Sub-Divisional Magistrate and as such, on this short ground alone, the writ petition ought to have been entertained by the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituated or found, to take possession thereof, and the Chief Metropolitan Magistrate or as the case may be, the District Magistrate shall, on such request being made to him: (a) take possession of such assets and documents relating thereto; and (b) forward such assets and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of Sub-section (1), the Chief Metropolitan Magistrate of the District may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any Court or before any authority. 8. From the perusal of Section 14 of the said Act, it would reveal that a secured creditor is entitled to make a request in writing to the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, where possession of any secured assets is required to be taken by the secured creditor or if any of the secured assets is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the stipulated period, in view of sub-clause(a) of Sub-section (4) of Section 13, the secured creditor is entitled to take possession of the secured assets of the borrower. It can thus be seen that once the secured creditor is entitled to take possession in view of the provisions of Sub-section (4) of Section 13, the only thing he is required to do, is to make an application in writing to the District Magistrate or the Chief Metropolitan Magistrate. If the two conditions stipulated in Section 14 are satisfied, then the Chief Metropolitan Magistrate or the District Magistrate has no other option but to take steps for taking possession of the secured assets and documents relating thereto and forward such assets and documents to the secured creditor. It can thus clearly be seen that no element of quasi-judicial functions are to be performed by the District Magistrate or the Chief Metropolitan Magistrate while exercising powers under Section 14, but he is only required to perform act of executionery nature in taking possession and delivering it to the secured creditor. 10. In this respect, we may usefully refer to the observations of the Division Bench of this Court in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfully reproduce the conclusions from Sr. No. 1 to 4 in para. 90 of the said judgment, as under: 1. The bank or financial institution shall, before making an application under Section 14 of the NPA Act, verify and confirm that notice under Section 13(2) of the NPA Act is given and that the secured asset falls within the jurisdiction of CMM/DM before whom application under Section 14 is made. The bank and financial institution shall also consider before approaching CMM/DM for an order under Section 14 of the NPA Act, whether Section 31 of the NPA Act excludes the application of Sections 13 and 14 thereof to the case on hand. 2. CMM/DM acting under Section 14 of the NPA Act is not required to give notice either to the borrower or to the 3rd party. 3. He has to only verify from the bank or financial institution whether notice under Section 13(2) of the NPA Act is given or not and whether the secured assets fall within the jurisdiction. There is no adjudication of any kind at that stage. 4. It is only if the above conditions are not fulfilled, that the CMM/DM can refuse to pass an order under Section 14 of the NPA Act by recording that the above conditions are not fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional District Magistrate was valid. Negating this contention, the Apex Court, in para.5, observed thus: It is difficult to accept the submission. The power of granting consent under Section 7 of the said Act rests with the Central Government. The Central Government had delegated it to the District Magistrate. It is, in our view, not competent for the State Government to further delegate to the Additional District Magistrate a power of the Central Government which the Central Government has delegated to the District Magistrate. The Apex Court in the said case had found that the power of the Central Government which was delegated to the District Magistrate could not have been delegated to the Additional District Magistrate by the State Government. Thus it can clearly be seen that in both these cases, the Apex Court held that the drastic power, which was to be exercised by the Central Government, was delegated by it specifically to the District Magistrate and as such, it was not permissible for the State Government to delegate it to the Additional District Magistrate. 14. In so far as the reliance on the judgment in the matter of State of UP v. Janki Devi Pal (supra) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCR480a , while construing the term District Judge used in Section 31(1) of the State Financial Corporation Act, 1951, while considering the provisions of execution of a decree against a surety who had given his personal guarantee, referring to the judgment of the Apex Court of the Bench consisting of 3 Judges in the case of Central Talkies Ltd. v. Dwarka Prasad (1981)ILLJ327SC , has held that the District Judge is not a persona Designata but a court of ordinary civil jurisdiction. The Apex Court observed in para.26, as under: 26. We may now state our reasons for holding that even if Section 46B of the Act was not there the provisions of the Code for the execution of a decree against a surety who had given only personal guarantee would, in the absence of any provision to the contrary in the Act, be applicable. In view of the decision of this Court in Central Talkies Ltd. Kanpur, v. Dwarka Prasad, where it was held that a persona designata is a person selected as an individual in his private capacity and not in his capacity as filling a particular character or office, since the term used in Section 31(1) of the Act is District Judge it cannot be doubted that the District J ..... X X X X Extracts X X X X X X X X Extracts X X X X
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