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TMI Blog2016 (7) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... equire that the borrower or guarantor should be heard. District Magistrate while issuing certificate under Section 14 of the Act of 2002 is performing non-adjudicatory ministerial function. It has been held in Jawahar Singh 's case (2015 (8) TMI 1304 - CALCUTTA HIGH COURT) that Section 14 of the Act of 2002 only provides an avenue for the secured creditor when faced with resistance by the borrower or anyone else, or when the borrower simply refuses to surrender possession, to seek administrative assistance of District Magistrate to facilitate taking of possession of a secured asset for sale and to recover its due. - S.B. Civil Writ Petition No. 6091 of 2015 - - - Dated:- 18-4-2016 - Kanwaljit Singh Ahluwalia, J. For the Petitioner : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither borrowers nor guarantors to the loan. It has been contended by ld. senior counsel that as per Section 14 of the Act of 2002, it is incumbent and necessary for the petitioner/bank to secure property mortgaged. It has been further contended by ld. Senior Counsel that Section 14 of the Act of 2002 itself is an emergency provision and it has to be acted upon at once so that property mortgaged is not sold or subjected to any encumbrance by the legal heirs or any other persons, who have interest in the property. It has been urged by ld. senior counsel that Ballabh Das Jhalani had executed a registered Will in favour of Suresh B. Jhalani and, hence, he is only necessary party. Mr. Ravi Chirania, learned counsel appearing for Rajendra Jh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Magistrate can cause interference only on very limited grounds. Having heard learned counsel appearing for the parties, this Court is of the view that Section 14 of the Act of 2002 requires that where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, request in writing to the Chief Metropolitan Magistrate or the District Magistrate to take possession of such property. A Single Judge of Calcutta High Court in the case of Jawahar Singh and Others Vs. United Bank of India and Others, reported as A.I.R. 2015 Cal. 306, dealing with principles of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that sub-section (1) of section 13, which is the harbinger of misfortune of recalcitrant borrowers, is completely overlooked by those representing them. The present cases are not too different. Decision by a quasi-judicial authority (see section 17) upon compliance with natural justice stands deferred till such time possession is taken. The SARFAESI Act does not remotely suggest compliance with natural justice at the stage when section 13 (4) or 14 operates. (Emphasis supplied). Paragraph 36 of V. Noble Kumar (supra) explains that there are 3 (three) methods for taking possession of a secured asset. In view thereof, section 14 cannot stand independent of sub-section 13(4). If a borrower has no right of hearing when the secured creditor ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, for taking possession of the assets mortgaged itself, in no way require that the borrower or guarantor should be heard. District Magistrate while issuing certificate under Section 14 of the Act of 2002 is performing non-adjudicatory ministerial function. It has been held in Jawahar Singh 's case (supra) that Section 14 of the Act of 2002 only provides an avenue for the secured creditor when faced with resistance by the borrower or anyone else, or when the borrower simply refuses to surrender possession, to seek administrative assistance of District Magistrate to facilitate taking of possession of a secured asset for sale and to recover its due. In view of above, the order passed by the District Magistrate is not legally tenabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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