Ronit Nirman Pvt. Ltd. v. State Bank Of India

1. The petitioner has challenged the order dated 20th June, 2011 passed by the Chief Judicial Magistrate, Barasat on an application filed under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 by the respondent-Bank.

2. Mr. Sen, learned advocate for the petitioner raises a short point. He contends that in terms of section 14 of the Act, it is the Chief Metropolitan Magistrate in a metropolitan area and the District Magistrate in a non-metropolitan area who are empowered to direct assistance of the police to be given for the purpose of possession of the properties in dispute and the Chief Judicial Magistrate has no jurisdiction to entertain an application under section 14 thereof. In support of his submission, Mr. Sen has relied on the Bench decision of the Bombay High Court in Indusind Bank Ltd. v. State of Maharashtra, AIR 2008 (NOC) 2474 (BOM). Mr. Sinha, learned advocate appearing for the Bank contends that the Bank was justified in approaching the Chief Judicial Magistrate since in terms of provisions contained in the Code of Criminal Procedure, the Chief Judicial Magistrate in a non-metropolitan area and the Chief Metropolitan Magistrate in a metropolitan area stand on the same footing. In support of his submission, he relies on the decision of a learned Judge of the Kerala High Court in Solaris System Pvt. Ltd. v. Oriental Bank of Commerce, 2006 (3) KLT 121.

3. I have heard learned advocates for the parties.

4. Section 14 of the Act does not refer to the Chief Judicial Magistrate as an authority who is empowered to direct assistance, if approached by a secured creditor. On a plain reading of the statute it is clear that in so far as a non-metropolitan area is concerned, the concerned District Magistrate has to be approached. The decision in Solaris System Pvt. Ltd (supra) does not take into consideration the fact that for a non-metropolitan area, the District Magistrate has been vested with the jurisdiction to extend assistance. Once an authority has been named for the purpose of rendering assistance, the Court cannot confer jurisdiction on an authority who has not been named in the statutory provision for exercising such power. That would amount to usurping legislative function.

5. It is settled law that a statutory authority can exercise powers to the extent the same is conferred on it whereas a natural person has the power to do every such act unless the same is curbed by a statutory provision [See 40 CWN 17, Maniuddin Bepari v. Chairman of the Municipal Commissioners, Dacca and 1994 (2) CLJ 450 Bipadtaran Patra v. State of West Bengal] The learned Judge of the Kerala High Court appears to have proceeded by posing a wrong question i.e whether the Act debars the Chief Judicial Magistrate to exercise section 14 powers or not.

6. The question that ought to have been framed is whether the Act empowers the Chief Judicial Magistrate to exercise section 14 powers or not. The answer to such question would have obviously been in the negative.

7. While respectfully disagreeing with the learned Judge of the Kerala High Court, I record my concurrence with the view expressed by the Bombay High Court and hold that the Chief Judicial Magistrate, Barasat acted without jurisdiction in entertaining the application under section 14 of the Act.

8. The order under challenge stands set aside.

9. The writ petition stands allowed without costs.

10. Liberty, however, is reserved to the Bank to approach the appropriate authority for assistance in accordance with law.

11. Urgent Photostat certified copy of this order, if applied for, is given to the learned advocate for the parties upon compliance of necessary formalities.

12. SP