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Union Bank of India Versus Precious Enterprises Pvt. Limited & others

2016 (7) TMI 763 - RAJASTHAN HIGH COURT

Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - right of creditors - Held that:- Section 14 of the Act of 2002 requires that where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, request in writing to the Chief Metropolitan Magistrate or .....

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with resistance by the borrower or anyone else, or when the borrower simply refuses to surrender possession, to seek administrative assistance of District Magistrate to facilitate taking of possession of a secured asset for sale and to recover its due. - S.B. Civil Writ Petition No. 6091 of 2015 - Dated:- 18-4-2016 - Kanwaljit Singh Ahluwalia, J. For the Petitioner : S. Kasliwal, Suruchi Kasliwal For the Respondent : Ravi Chiranai, R. K. Salecha, Pramod Kumar ORDER Instant petition has been pre .....

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petitioner-bank and the respondent Nos.2 to 5, namely Ballabh Das Jhalani, Smt. Rajani Jhalani, Suresh B. Jhalani and M/s. G.B. Impex stood as guarantors. After filing of the application under Section 14 of the Act of 2002, Ballabh Das Jhalani expired on 08.06.2014. District Magistrate, Jaipur, in its impugned order dated 02.07.2014, ordered that the legal heirs of the respondent No2 - Ballabh Das Jhalani are required to be impleaded as party by the petitioner/bank. Mr. S. Kasliwal, ld. Senior C .....

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d necessary for the petitioner/bank to secure property mortgaged. It has been further contended by ld. Senior Counsel that Section 14 of the Act of 2002 itself is an emergency provision and it has to be acted upon at once so that property mortgaged is not sold or subjected to any encumbrance by the legal heirs or any other persons, who have interest in the property. It has been urged by ld. senior counsel that Ballabh Das Jhalani had executed a registered Will in favour of Suresh B. Jhalani and, .....

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capacity. Counsel further submitted that the registered Will in favour of Suresh B. Jhalani is subject matter of a civil suit and in another suit, Suresh B. Jhalani has been restrained not to alienate property mortgaged with the petitioner-bank. However, Mr. Chirania, ld. counsel, has very fairly admitted that the petitioner-bank is not party to the suit in which Suresh B. Jhalani has been restrained. Mr. Kasliwal, ld. senior counsel appearing for the petitioner-bank, has relied upon case of Ten .....

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nother Vs. Union of India and others, reported as A.I.R. 2009 Kerala 14, to contend that the Court of District Magistrate can cause interference only on very limited grounds. Having heard learned counsel appearing for the parties, this Court is of the view that Section 14 of the Act of 2002 requires that where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the p .....

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y with natural justice has neither been expressly excluded nor excluded by implication and, therefore, natural justice has to be read into section14. It has also been contended that since the order of the CMM/DM under section 14 for taking possession would visit a borrower with civil consequence, no such order can be made without complying with natural justice. I am afraid, the contentions do not impress me at all. The scheme of the SARFAESI Act, as explained in Mardia Chemicals (supra), Transco .....

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anscore (supra) are pre-section 14 amendment decisions, make no difference. There is no fundamental change in the object and purposes of the SARFAESI Act even after the amendments. Since the need for a borrower to draw legal assistance arises only after a demand notice under sub-section (2) is issued, it has been experienced in very many cases that sub-section (1) of section 13, which is the harbinger of misfortune of recalcitrant borrowers, is completely overlooked by those representing them. T .....

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ndent of sub-section 13(4). If a borrower has no right of hearing when the secured creditor takes possession under section 13(4), a fortiori, no hearing can be demanded by a borrower when he succeeds in resisting possession being gained over by the authorised officer of the secured creditor or does not on his own surrender possession, and thus compels him to work out his remedy by seeking an order under section 14from the CMM/DM. Only a postpossession right to approach the tribunal is conferred .....

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