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Firoj Early Hearing Disposal Application

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13 views3 pages

Firoj Early Hearing Disposal Application

Uploaded by

advrksingh1992
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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BEFORE THE LEARNED CHIEF JUDICIAL MAGISTRATE,

MIRZAPUR
Application No. of 2023

Aadhar Housing Finance Ltd. …………..Applicant


Versus
Firoj & others ………..Opp. Parties

Case No-
U/s-14 of SARFAESI Act
Next Date-

Application for Early Disposal


In the above noted application, the applicant/secured creditor most
respectfully submits as under: -
1. That the applicant/secured creditor filed the above noted application
on………….…, under section 14 of the SARFAESI Act, seeking assistance
of the designated authority for taking physical possession of the secured
asset.

2. That as per the provision of the Act the matter should have been decided in
the stipulated time however, the learned authority has issued a notice to the
borrower, whereas, it is beyond the scope of and ambit of the powers
exercised by the learned adjudicating authority under section 14 of the
SARFAESI Act.

3. That thus, the applicant is aggrieved and dissatisfied with that impugned
order dated of the learned court through which the borrower has been
called for presenting its version before the authority.

4. That as the statutory obligation enjoined upon the DM is to immediately


move into action after receipt of a written application under section 14(1) of
the SARFAESI Act as it is observed and held by the Hon’ble court in the
case of NKGSB Cooperative bank Ltd. Vs. Subir Chakravarty & ors.,
the aforesaid act is a ministerial act. It cannot brook delay. time is of the
essence and this is the spirit of the special enactment.

5. That in the Case of Balkrishna Rama Tarle Dead thr LRS & Anr Vs.
Phoenix ARC Private Ltd. & ors the Hon’ble Supreme Court of India has
observed that the powers exercisable by DM under section 14 of the
SARFAESI Act are ministerial step and section 14 does not involve any
adjudication process qua points raised by the borrowers against the secured
creditor taking possession of the secure assets. Thus, the DM is not required
to adjudicate the dispute between the borrower and the secure
creditor/applicant and/or between any other third party and the secured
creditor with respect to the secured assets.

6. That in the case of Standard Chartered Bank Vs. V Noble Kumar and
others, the Hon’ble Apex Court has held that since the borrower has no right
of hearing when the secured creditor takes possession under Section 13(4),
no hearing can be demanded by a borrower when by his action in resisting
possession being gained over by the authorized officer of the secured
creditor or refusing to deliver possession on his own, he compels such
officer to seek assistance of the Authorized Officers under Section 14. The
right to approach the tribunal is conferred on a borrower in terms of Section
17, post possession, whether it is symbolic possession under Section 13(4)
or physical possession under Section 14 of the Act, 2002. The scheme of
SARFAESI Act' 2002, thus, does not admit of any requirement of complying
with natural justice by putting the borrower on notice while an application
under Section 14 is under consideration. In view of the efficacious
mechanism under the Act being in place, the borrower cannot seek a right of
hearing at an intermediary stage.

7. That in another case of Shipra Hotels Ltd. & Another Vs. State of U.P & 3
others, the Hon’ble High Court of Allahabad has held that: -
“That the CMM/DM 52. acting under Section 14 of the SARFAESI Act,
2002 is not required to give notice to the borrower at the stage of the
decision or passing order as no hearing can be demanded by the borrower at
this stage.”

8. That in the case of M/s R.D Jain & Co. Vs. Capital First Ltd. & others
the Apex Court has considered that the powers of the Chief Metropolitan
Magistrate under Section 14 of the SARFAESI Act is purely executionary in
nature having no element of quasi-judicial functions and the power exercised
by CMM/DM is a Ministerial Act. As per the dictionary meaning of
"Ministerial Act", an authority performing "Ministerial Act" has no liberty to
exercise of his own judgment. The enquiry under Section 14 by the
CMM/DM is restricted to only two aspects; (i) whether the secured asset
falls within his territorial jurisdiction, and (ii) whether notice under Section
13(2) of the Act, 2002 is given or not. No adjudication of any kind is
contemplated at that stage.

9. That in the case of Equitas Small Finance Bank ltd. Vs. State of Madhya
Pradesh the High Court of Madhya Pradesh has held That-

“In view of the above discussion, it is clear as day light that DM/ADM/CJM
have to strictly follow the provisions of Section 14 of SARFAESI Act as
well as law laid down by the Apex Court in the case of R.D. Jain &
Company(supra) and Kotak Mahindra Bank Limited(supra) in deciding
the applications filed by the secured creditors keeping in the mind the
interest of lessee/tenant of borrowers also as held in the cases of Harshad
Govardhan Sondagar & Vishal N.Kalsaria (supra)”.

10.That it important to mention here that all the law declared by the Supreme
Court are binding on all the courts. Article 141 of the Constitution of India
also declare that: - “The law declared by the Supreme Court shall be
binding on all courts within the territory of India.”

Wherefore, it is most respectfully prayed that in the aforesaid reasons


& circumstances the learned court may graciously be pleased to pass the
order for physical possession of the secure asset in the aforesaid case
without any further delay in the interest of the Justice.

Lucknow
Dated:- Yogi Sharma
Advocate
Counsel for Applicant/Secure Creditor

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