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TMI Blog2013 (4) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... urity Interest Act, 2002 by which the learned Additional Chief Metropolitan Magistrate, Ahmedabad directed the local police to assist the secured creditor, namely, the Union Bank of India to take over the possession of the secured assets mortgaged by the petitioner at the time of availing of the loan facility. ( 2. ) THE petitioner also calls in question the legality, validity and propriety of the office order bearing No. A(VI) 40/2012 issued by the Chief Metropolitan Magistrate, Ahmedabad dated 4th February 2012 in exercise of his powers under Section 19, Clause (3) of the Code of Criminal Procedure, 1973 by which the applications under the provisions of the SARFAESI Act arising within the limits of the Ahmedabad Municipal Corporation were ordered to be filed in the Court of Additional Chief Metropolitan Magistrate, Ahmedabad. ( 3. ) THE case of the petitioner may be summed up thus : - ( 4. ) THE petitioner is a woman entrepreneur and is engaged in the business of dress materials. The petitioner is a proprietor of a proprietary concern, namely, Messrs Murli Manohar Somani. The petitioner is suffering from cancer due to which the petitioner and her husband decided to stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter, on 2nd November 2011 deposited a further sum of ₹ 6 Lac in the said account with the respondent Bank. Thereafter, the petitioner preferred a representation to the respondent Bank making a request that she was ready and willing to pay the principal amount of the loan advanced and the Bank may consider waiver of the interest accrued in the said account in view of financial constraints of the petitioner. The petitioner also requested the Bank not to proceed ahead with the proceedings under the SARFAESI Act. However, the Bank did not give any reply to the representation of the petitioner. ( 7. ) IT is the case of the petitioner that she requested the Bank to give her some breathing time but the Bank issued a notice under Section 13, Clause (4) of the SARFAESI Act 2002 dated 26th November 2011, informing the petitioner that the possession of her flat would be taken over by the Bank on 8th December 2011. ( 8. ) IT appears that the petitioner refused to hand over the physical possession of the flat to the respondent Bank, and therefore, the Bank filed a Miscellaneous Application No.33 of 2012 dated 24th January 2012 under Section 14 of the SARFAESI Act 2002 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the petitioner i.e. Exhibit 7 and Exhibit 10. ( 11. ) BEING dissatisfied by such order passed by the Additional Chief Metropolitan Magistrate, Ahmedabad, the petitioner has come up with this writ application. ( 12. ) SUBMISSIONS on behalf of the petitioner. 12.1 Mr. Ravindra Shah, the learned Counsel appearing for the petitioner vehemently submitted that the order impugned is without jurisdiction as there is nothing to suggest that the Additional Chief Metropolitan Magistrate, Ahmeabad, has been conferred with any powers under Subsection (2) of Section 17 of the Code of Criminal Procedure, of a Chief Metropolitan Magistrate, so far as the SARFAESI Act 2002 is concerned. Mr.Shah submitted that in such circumstances the office order dated 4th February 2012 passed by the Chief Metropolitan Magistrate, Ahmedabad, in exercise of his powers under Section 19, Clause (3) of the Code of Criminal Procedure read with Rule 10, Clause (1) of Chapter XXXII of the Criminal Manual, 1977 empowering the Additional Chief Metropolitan Magistrate, Ahmedabad, to deal with the applications filed under Section 14 of the SARFAESI Act 2002 would also be without jurisdiction. , 12.2 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of this Court under Article 226 of the Constitution of India. 13.3 Mr.Jani lastly submitted that this petition may not be entertained as the petitioner has an efficacious alternative remedy of filing an application in the form of an appeal under Section 17 of the SARFAESI Act 2002. 13.4 In such circumstances, Mr.Jani prays that there being no merit in this petition, the same may be dismissed with costs. ( 14. ) MR . Anshin H. Desai, the learned Standing Counsel appearing for the Union of India adopted the submissions canvassed on behalf of the Bank and prayed that there being no merit in this petition, the same may be dismissed. ( 15. ) HAVING heard the learned Counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this petition is whether the learned Additional Chief Metropolitan Magistrate, Ahmedabad, committed any error in passing the order impugned. ( 16. ) THE question which we have posed for our consideration arises in the backdrop of the vociferous submission canvassed on behalf of the petitioner that Section 14 of the SARFAESI Act 2002 empowers only the Chief Metro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Metropolitan Magistrate for such metropolitan area. (2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force as the High Court may direct. 17.2 Section 19 of the Code of Criminal Procedure 1973 reads as under: - 19. Subordination of Metropolitan Magistrates. (1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge, and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate. (2) The High Court may, for the purposes of this Code, define the extent of the subordination if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate. (3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication by the State Government on the recommendation of the High Court for conferment of the broad powers on the Additional Chief Metropolitan Magistrate is necessary. In such circumstances, we directed the registry of this High Court to produce the order in terms of Section 17, Clause (2) of the Code of Criminal Procedure while creating the post of Additional Chief Metropolitan Magistrate, Ahmedabad. ( 22. ) THE registry placed before us various notifications regarding creation of post of Additional Chief Metropolitan Magistrate, Ahmedabad, and also conferment of power of Additional Chief Metropolitan Magistrate upon all the Metropolitan Magistrates. So far the creation of the Court of Additional Chief Metropolitan Magistrate, Ahmedabad is concerned, it appears that in the year 1986 in exercise of powers conferred under Subsection (2) of Section 17 of the Code of Criminal Procedure 1973, this High Court was pleased to appoint Mr.B.N.Doctor, Metropolitan Magistrate, Ahmedabad, to be Additional Chief Metropolitan Magistrate, Ahmedabad, in the post created under Government Resolution, Legal Department No.SPC1079/2155/B dated 27th May 1986 exclusively for trial of economic offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 14 of the SARFAESI Act 2002. The registry vide report dated 19th March 2013 brought to our notice that no separate notification has been issued by this High Court authorizing the Additional Chief Metropolitan Magistrate, Ahmedabad, to exercise powers under Section 14 of the SARFAESI Act 2002. ( 27. ) WE are of the opinion that in such circumstances the Chief Metropolitan Magistrate, Ahmedabad, by virtue of his Authority under Section 19, Clause (3) of the Code of Criminal Procedure, 1973 could not have entrusted the Additional Chief Metropolitan Magistrate with his own determination and the allocation of business to an Additional Metropolitan Magistrate must be in tune with the jurisdiction conferred upon him by the High Court in exercise of powers under Section 17, Clause (2) of the Act. It is a well settled position of law that special orders to be made by the Chief Metropolitan Magistrate as to distribution of business must be consistent with the Code. Unless an Additional Chief Metropolitan Magistrate was expressly conferred the power by way of a notification to entertain an application under Section 14 of the SARFAESI Act 2002, he would have no jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Article 226 of the Constitution of India is plenary in nature and cannot be curtailed by other provisions of the Constitution of India or a statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution of India. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertain a writ petition but is a discretion to be exercised depending on the facts of each case. ( 29. ) IN an appropriate case, in spite of availability of alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the fundamental rights, (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or vires of an Act is challenged. ( 30. ) WE are not impressed by the submission of Mr.Jani as regards the alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent amendment which has been carried out so far as Section 14 of the SARFAESI Act 2002 is concerned. By Act 1 of 2013, Section 6 (a) (w.e.f. 15.1.2003 vide S.O.171(E)] dated 15.1.2003), the following amendment has been brought about in Section 14, which reads as under: [Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that ( i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application; (ii) the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period; (iii) the borrower has created security interest over various properties giving the details of properties referred to in subclause (ii) above; (iv) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount; (v) consequent upon such default in repayment of the financial assistance the acc ..... 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