2004 (4) TMI 294 - SC - Indian Laws

Whether it is open to challenge the statute on the ground that it was not necessary to enact it in the prevailing background particularly when another statute was already in operation? Whether provisions as contained under sections 13 and 17 of the Act provide adequate and efficacious mechanism to consider and decide the objections/disputes raised by a borrower against the recovery, particularly in view of bar to approach the civil court under section 34 of the Act? Whether the remedy available under section 17 of the Act is illusory for the reason it is available only after the action is taken under section 13(4) of the Act and the appeal would be entertainable only on deposit of 75% of the claim raised in the notice of demand? Whether the terms or existing rights under the contract entered into by two private parties could be amended by the provisions of law providing certain powers in one sided manner in favour of one of the parties to the contract? Whether provision for sale of the properties without intervention of the Court under section 13 of the Act is akin to the English mortgage and its effect on the scope of the bar of the jurisdiction of the civil court? Whether the provisions under sections 13 and 17(2) of the Act are unconstitutional on the basis of the parameters laid down in different decisions of this Court? Whether the principle of lender s liability has been absolutely ignored while enacting the Act and its effect? Held that - The borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest. Therefore uphold the validity of the Act and its provisions except that of sub-section (2) of section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India. Thus where a secured creditor has taken action under section 13(4) of the Act, in such cases it would be open to borrowers to file appeals under section 17 of the Act within the limitation as prescribed therefor, to be counted with effect from today. The transfer cases, appeals and the petitions thus stand partly allowed limited to the extent indicated above. For the rest of the reliefs, they stand dismissed.

Issues:
1. Necessity of the enactment of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
2. Adequacy and efficacy of the mechanism under Sections 13 and 17 of the Act.
3. Validity of the condition of deposit of 75% of the claim before appealing under Section 17.
4. Impact of the Act on existing contractual rights between private parties.
5. Comparison with English mortgage and its implications on the jurisdiction of civil courts.
6. Constitutionality of Sections 13 and 17(2) of the Act.
7. Consideration of lender's liability in the enactment of the Act.

Analysis:

1. Necessity of the Enactment:
The court held that the enactment of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, was necessary due to the mounting non-performing assets (NPAs) and the inefficacy of the existing Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The Act was recommended by the Narasimham Committee and the Andhyarujina Committee to provide a faster mechanism for the recovery of NPAs, which was crucial for the economic stability and growth of the country.

2. Adequacy and Efficacy of Mechanism under Sections 13 and 17:
The court observed that the Act provides a mechanism for the enforcement of security interest without court intervention. Under Section 13, the secured creditor can take possession of the secured assets if the borrower defaults. The borrower can appeal under Section 17 after measures are taken under Section 13(4). The court emphasized that the creditor must consider the borrower's objections to the notice under Section 13(2) and communicate reasons for not accepting them. This ensures fairness and transparency in the process.

3. Validity of Condition of Deposit of 75% of Claim:
The court found the condition of depositing 75% of the claim before appealing under Section 17 to be oppressive, onerous, and arbitrary. It held that such a condition renders the remedy illusory and violates Article 14 of the Constitution. The court struck down this provision, allowing borrowers to appeal without such a deposit.

4. Impact on Existing Contractual Rights:
The court acknowledged that the Act affects existing contractual rights between private parties by providing unilateral powers to the secured creditor. However, it justified this interference by emphasizing the public interest in ensuring the recovery of NPAs and the stability of the financial system. The court held that individual rights must give way to public interest in such cases.

5. Comparison with English Mortgage:
The court noted that the Act allows enforcement of security interest without court intervention, similar to an English mortgage. However, it clarified that the Act overrides Section 69 of the Transfer of Property Act, which restricts the sale of mortgaged property without court intervention to certain cases. The court held that this special enactment takes precedence over the general law.

6. Constitutionality of Sections 13 and 17(2):
The court upheld the constitutionality of Sections 13 and 17 of the Act, except for the condition of deposit under Section 17(2). It emphasized that the Act provides necessary safeguards for borrowers, including the requirement for creditors to consider objections and the provision for appeals. The court found that these provisions ensure a fair process and do not violate the Constitution.

7. Consideration of Lender's Liability:
The court acknowledged the concept of lender's liability, emphasizing that financial institutions must act fairly and in good faith. It noted that the Act does not explicitly address lender's liability but held that lenders are expected to fulfill their obligations under the contract. The court stated that borrowers can raise defenses based on deficiencies or unfair treatment by lenders.

Conclusion:
The court upheld the validity of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, except for the condition of deposit under Section 17(2). It emphasized the necessity of the Act for the recovery of NPAs and the stability of the financial system while ensuring fairness and transparency in the process. The court provided safeguards for borrowers, including the requirement for creditors to consider objections and the provision for appeals without the oppressive condition of deposit.

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