9911796707
TMI Blog2015 (3) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the borrower had failed to repay the loan amount with interest. Considering such aspect, the District Magistrate was of the view that police assistance as required by the respondent nos. 1 and 2 were required to be provided and as such allowed such prayer. No material was placed before me to suggest that the District Magistrate was not apprised of the material facts relating to an application under Section 14 of the SARFAESI Act, 2002.I find no infirmity in the order passed by the District Magistrate dated September 24, 2014. In the facts of the instant case, five creditors of the respondent no. 3 are secured creditors within the meaning of Companies Act, 1956. In respect of the respondent no.3, four secured creditors are “secure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The order of the District Magistrate impugned is dated September 24, 2014. By such order, the District Magistrate has allowed police assistance to a secured creditor to enforce a security interest under the SARFAESI Act, 2002. Mr. Joy Saha, learned Counsel for the petitioner, submits that, the District Magistrate did not take into account the parameters laid down under Section 14 of the SARFAESI Act, 2002 in deciding the issue and passing the order impugned. Consequently, the order impugned is invalid according to him. His next limb of submission is that, secured creditors of requisite percentage have not invoked the provisions of the SARFAESI A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the District Magistrate is in accordance with the Section 14 of the SARFAESI Act, 2002 or not. The second issue is whether the secured creditors of requisite value as laid down in Section 13(9) of the SARFAESI Act, 2002 have invoked the provisions of SARFAESI Act, 2002 or not. On the first issue, I have perused the order of the District Magistrate which is at page 51 of the writ petition. The order is dated September 24, 2014. The District Magistrate records perusal of the papers and documents submitted by the respondent nos. 1 and 2. The District Magistrate in his finding observed that reasonable opportunity was afforded to the borrower in accordance with the provisions of the SARFAESI Act, 2002 and that the borrower had failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the meaning of the SARFAESI Act, 2002. West Bengal Industrial Development Corporation which is shown in the books of the respondent no.3 as its secured creditor is not a secured creditor within the meaning of SARFAESI Act, 2002 as it is not notified to be so under SARFAESI Act, 2002. SARFAESI Act, 2002 defines as secured creditors. Such definition is Act, Section 2(zd) the definition is as follows:- (zd) Secured Creditor means any bank or financial institution or any consortium or group of banks or financial institutions and includes - i] debenture trustee appointed by any bank or financial institutions; or ii] securitisation company or reconstruction company, whether acting as such or managing a trust set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 1956 may or may not be a secured creditor within the meaning of the SARFAESI Act, 2002. The determining factor of 60% laid down in Section 13(9) of the SARFAESI Act, 2002 is in relation to a secured creditor within the meaning of SARFAESI Act, 2002 itself. A borrower who is a legal entity other than a legal entity incorporated or existing under the Companies Act, 1956 may have creditors who may be termed as secured creditors in relation to such borrower. In such scenario also all of such creditors may not come within the definition of secured creditors under the SARFAESI Act, 2002. In the facts of the instant case, five creditors of the respondent no. 3 are secured creditors within the meaning of Companies Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en any measure to recover their secured debt under Sub-section (4) of Section 13 of the SARFAESI Act, 2002. In the instant case, all the secured creditors of the respondent no.3 governed by the provisions of the SARFAESI Act, 2002, excepting one, have taken measures under Section 13 of the SARFAESI Act, 2002. The collective value of the amount outstanding against the respondent no.3 in respect of three secured creditors, governed by the SARFAESI Act, 2002, is in excess of three-fourth of the value of the amount outstanding against the respondent no.3. The reference before the BIFR, therefore, has abated. All and any order of the abatement passed by the BIFR in such reference is a nullity. Mr. Saha contends that, West Bengal Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
