1. This Appeal has been preferred under Section18 of the SARFAESI Act, 2002 against the Order dated 28.3.2019 passed by Presiding Officer, Debts Recovery Tribunal-3, Kolkata whereby the Interlocutory Application filed by the respondent-borrowers was allowed and order dated 4.12.2018 of the District Magistrate for taking physical possession of the secured asset was set aside.
2. Brief facts giving rise to this Appeal are, that the appellant-Bank granted some financial assistance to the respondent No. 1. The loan was secured by equitable mortgage of the properties belonging to respondent Nos. 2 and 3. Since the borrowers did not maintain the financial discipline hence the Bank issued demand notice dated 17.2.2016 followed by possession notice dated 2.5.2016. Thereafter the appellant-Bank approached before the District Magistrate under Section14 of the SARFAESI Act for physical possession of the properties. The said application was not decided in reasonable time hence the Bank filed writ petition before the Hon’ble High Court whereby the District Magistrate was directed to dispose of the application filed by the Bank. Accordingly the District Magistrate passed order dated 4.12.2018 for physical possession of the properties. The respondents-borrowers challenged the proceedings of the Bank including the order of the District Magistrate by filing S.A. No. 2 of 2019. The interlocutory application being No. 138 of 2019 was also filed for restraining the Bank from taking physical possession and setting aside of the order of the District Magistrate. The Tribunal below vide impugned order while keeping the other issues open, set aside the order of the District Magistrate giving liberty to the Bank to approach District Magistrate by filing fresh application in accordance with law. Being aggrieved by the said order, the Bank has filed the present Appeal.
3. Learned Counsel for the appellant submitted that the S.A. was pending at the initial stage but the Tribunal below had erred in deciding and setting aside the order of the District Magistrate. No such final relief can be granted on the interlocutory application as such, the impugned order is not sustainable. Learned Counsel refers the judgment of the Hon’ble Supreme Court passed in Union of India and Others v. M/s Modiluft Ltd., 104 (2003) DLT 933 (SC)=III (2003) SLT 712=AIR 2003 SC 2218 to substantiate his view.
4. Learned Counsel has further argued that the District Magistrate while passing the order under Section 14 of the SARFAESI Act is not required to conduct any inquiry with regard to the facts nor is required to use the specific word “satisfaction”. The order was passed after taking into consideration the affidavit and other material furnished by the Bank hence the Tribunal below was not justified in setting aside the order of District Magistrate. In support of his contention, the learned Counsel has relied upon the following judgments:
1. Indian Bank v. S.K. Jeevanandam, (2017) 14 SCC 329;
2. Manish Makhija v. Central Bank of India, 2018(2) DRTC 289 (MP);
3. Dimension Realtors Private Limited and Another v. The District Magistrate, North 24 Parganas and Others, AIR 2016 Cal 100.
5. On the contrary, learned Counsel for the respondents submitted that the order of the District Magistrate was challenged in S.A. which gives rise to separate cause of action hence the same may be decided in the interlocutory application as it was part of final relief. The District Magistrate has not recorded his “satisfaction” as to whether any affidavit was filed or about the contents thereof. A reflection of satisfaction of the District Magistrate is necessary before passing the order in view of the judgment passed by Hon’ble Supreme Court in Standard Chartered Bank v. V. Noble Kumar and Others, III (2016) BC 405 (SC)=III (2016) DLT (CRL.) 148 (SC)=IV (2016) SLT 531=III (2016) CCR 64 (SC)=(2013) 9 SCC 620 and unreported judgment of the Hon’ble Calcutta High Court in Krishna Builders and Developers and Another v. Shriram Housing Finance Limited and Another, C.O. No. 2093 of 2018, decided on 13.3.2019.
6. Having heard the Counsel of the parties and considering the material available on record, it is apparent that the respondents-borrowers challenged the demand notice and possession notice disputing the mortgage of properties as also the order passed by the District Magistrate. Interlocutory application was filed with a prayer to restrain the Bank from taking physical possession and to set aside the order of the District Magistrate. The impugned order was passed in the interlocutory application and all other issues except District Magistrate’s order are yet to be considered by the Tribunal below.
7. There is no dispute on the proposition laid down by Hon’ble Supreme Court in Union of India and Others v. M/s Modiluft Ltd. (supra) that no final relief can be given by way of any interim order. But the facts of the present matter are distinguishable. Under the SARFAESI Act, every step taken by the Bank gives rise to separate and independent cause of action. If more than one step is challenged in single S.A., then normally it should be decided at one time. But since every step is independent, therefore, the specific step may be challenged by filing separate S.A. or by way of amendment in the pending S.A. or by filing interlocutory application. In the instant case, the order of the District Magistrate was passed before filing the S.A. hence the same was challenged in the present S.A. and I.A. was filed separately. In the interlocutory application, specific relief for setting aside the order of the District Magistrate was sought. The Tribunal below vide impugned order finally decided the fate of order dated 4.12.2018 of District Magistrate hence virtually it is a part of final relief. Thus, the order impugned qua the District Magistrate’s order cannot be treated as interim order rather it is final one as the same issue is not to be decided again in the pending S.A. It was also in the interest of both the parties, if the order of District Magistrate was adjudicated at the earliest so that necessary steps may be taken thereafter. This view is fortified by the principle laid down by the Hon’ble Supreme Court in Krishna Builders and Developers and Another v. Shriram Housing Finance Limited and Another (supra) wherein the order of District Magistrate was set aside on interlocutory application and it was held at para 59 of the judgment that the interlocutory application challenging the order passed under Section14 was very much maintainable.
8. Coming to the merits of the impugned order, the Tribunal below has observed that the said order was passed in a cryptic manner which does not demonstrate that it was passed after satisfying the contents of the affidavit filed by the Authorised Officer. In this regard, Section 14 of the SARFAESI Act as amended envisages that the District Magistrate or Chief Metropolitan Magistrate shall, “after satisfying the contents of the affidavit”, pass suitable orders for the purpose of taking physical possession of the secured assets. The Hon’ble Supreme Court in Standard Chartered Bank v. V. Noble Kumar and Others (supra) has held as under:
“25. The satisfaction of the Magistrate contemplated under the Second Proviso to Section 14(1) necessarily requires the Magistrate to examine the factual correctness of the assertions made in such an affidavit but not the legal niceties of the transaction. It is only after recording of his satisfaction the Magistrate can pass appropriate orders regarding taking of possession of the secured asset.”
9. The Hon’ble Calcutta High Court in Krishna Builders and Developers and Another v. Shriram Housing Finance Limited and Another (supra) had observed that although no detailed inquiry as to veracity of nine points of affidavit was required but the Magistrate was required to record “satisfaction” as to such points being mentioned in the affidavit.
10. Thus, it is clear from the above citations that the District Magistrate is not required to make any detailed inquiry or ponder over the veracity of facts but he has to record his “satisfaction” that the contents of the affidavit were considered. In absence of any reflection of such satisfaction, the order passed under Section14 cannot be said to be legal and proper. In the present matter, a perusal of the order dated 4.12.2018 of the District Magistrate reflects that only the facts of filing of application under Section14, issuance of demand notice and direction of the Hon’ble High Court were stated in the order but nowhere it has been mentioned that after satisfying the contents of affidavit the order was passed. Even there is no mention of filing of any affidavit and perusal thereof. Thus, it is apparent that the order was passed in a cursory manner without applying the mind and recording any “satisfaction”. Though the term “satisfaction” need not be specifically mentioned yet, there should be reflection in the contents of the order that it was passed after considering the material and on being satisfied therefrom. Hence, the order passed by the District Magistrate is not sustainable.
11. I respectfully agree with the principles laid down in the judgments referred by the Counsel for the appellant but they do not render any assistance to the appellant Bank. In Indian Bank v. S.K. Jeevanandam (supra), the order of the Magistrate was passed in the year 2011, prior to the amendment. Hence, the same is not applicable. In Dimension Realtors Private Limited and Another v. The District Magistrate, North 24 Parganas and Others (supra), it was also held that the term “satisfy” confines the “satisfaction” to merely checking that the nine features of the declaration as recognized in the first proviso have been covered in the affidavit. But in the impugned order, the District Magistrate has not mentioned even that he had checked those nine features of the affidavit having been covered or not. Instead, there is no any whisper in the order with regard to features of the affidavit. Similarly,
Please Login To View The Full Judgment!
in the Manish Makhija vs. Central Bank of India (supra), the District Magistrate has recorded the finding that “the present application, attached documents and provisions of the Act were perused”, hence it was held that even without using the word “satisfaction”, the Competent Authority shown his “satisfaction” about the requirement of the Act on perusal of application and attached documents. But in the case at hand, no such mention muchless ‘perusal of documents’ was there in the order. The facts of the present matter are squarely covered by the principle laid down by the Hon’ble Calcutta High Court in Krishna Builders and Developers and Another v. Shriram Housing Finance Limited and Another (supra). 12. In view of the aforesaid, there is no illegality or infirmity in the impugned order hence the Appeal is liable to be dismissed. 13. Accordingly, the Appeal is dismissed with no order as to costs. 14. Copy of the judgment be sent to the parties and DRT concerned and also be uploaded in the website of this Tribunal and the file be consigned to Record Room. Appeal dismissed.