9911796707
TMI Blog2013 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Act except that of Section 17(12). - Despite this, counsel contended that the issues raised by the petitioners in these writ petitions were not considered by the Apex Court and therefore, according to him, this Court should go into the validity of the provisions of the Act once again. - This judgment is a complete answer to the contentions raised by the learned counsel for the petitioners. X X X X Extracts X X X X X X X X Extracts X X X X ..... or declaration, declaring that Sections 34 and 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 are unconstitutional and void inasmuch as while the said Sections bar the jurisdiction of Civil Courts to entertain and adjudicate any matter with respect to which the Debt Recovery Tribunal and Debt Recovery Appellate Tribunal (constituted under the Recovery of Debts Due to Banks and financial Institutions Act, 1993) are empowered and competent to decide, including granting of ad-interim relief, the said SARFAESI Act does not provide for any express provision whereunder a secured debtor or borrower or guarantor, who has suffered injury, damage and loss and thus is entitled to an act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration, declaring that Rule 8(5) of the Security Interest (Enforcement) Rules, 2002 is unconstitutional inasmuch as it does not provide for a right of hearing to the secured debtor before valuation of the secured asset; (e) issue a writ or order or declaration, declaring that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 is unconstitutional and void inasmuch as it permits the learned Chief Judicial Magistrate/District Magistrate to order dispossession of the property of a borrower/tenant or even a third party on a mere application at the hands of a Bank or Financial Institution, often a simple mortgage, without notice and without hearing him, and thus in violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court held as follows in paras 80 to 82 of the judgment:- Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows :- 1. Under sub-section (2) of Section 13 it is incumbent upon the secured credior to serve 60 days notice before proceeding to take any of the measures as provided under sub-section (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this judgment, we find that it will be open to maintain a civil suit in civil Court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the Court. 81. In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02) 4 SCC 638} and it was held thus: The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (See Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur and AIR 1973 SC 794). When the Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See Narinder Singh v. Surjit Singh and Kausalya Devi Bogra v. Land ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
