Whether Additional District Magistrate / Additional Chief Metropolitan Magistrate can assist in taking physical possession of property under SARFAESI?

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Shubham Budhiraja[1]

A took a Loan from Bank and defaulted. B issued notice under SARFAESI and took symbolic possession of property. To get physical possession, it filed application under section 14 to take help of DM/CMM. Aggrieved by delay in deciding this application, Bank filed writ in High Court wherein CMM cited that due to long pendency of cases, it is not practical to decide the application within 30 days. HC held that DM/CMM can take assistance of ADM/ ACMM. A challenged the order. Hon'ble Supreme Court affirmed the High Court view and held that (I) under CRPC, both CMM and ACMM are of equal rank so far as judicial power are concerned, (II) Section 14 Application require no application of mind. It's executory and ministerial act. Hence, Section 14 Application can be filed and decided by ADM / ACMM.[2]

 

(I)                The step to be taken by the CMM/DM under Section 14 of the SARFAESI Act, is a ministerial step. While disposing of the application under Section 14 of the SARFAESI Act, no element of quasi­judicial function or application of mind would require. The Magistrate has to adjudicate and decide the correctness of the information given in the application and nothing more. Therefore, Section 14 does not involve an adjudicatory process qua points raised by the borrower against the secured creditor taking possession of secured assets.

 

(II)               Any Metropolitan Magistrate can be appointed by the High Court to be the Chief Metropolitan Magistrate. 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 Cr.PC or under any other law for the time being in force as the High Court may direct.

 

(III)             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. Thus the judicial powers and the powers, under the Cr.PC which may be exercised by the Chief Metropolitan Magistrate, can be exercised by the Additional Chief Metropolitan Magistrate also. Thus, the Additional Chief Metropolitan Magistrate can be said to be at par with the Chief Metropolitan Magistrate in so far as the powers to be exercised under the Cr.PC are concerned.

 

(IV)              The Chief Metropolitan Magistrate in addition, may have administrative powers. However, for all other purposes and more particularly the powers to be exercised under the Cr.PC both are at par. Therefore, the Additional Chief Metropolitan Magistrate cannot be said to be subordinate to the Chief Metropolitan Magistrate in so far as exercise of judicial powers are concerned.

 

 

(V)                The powers under Section 14 of the SARFAESI Act can be exercised by the concerned Additional Chief Metropolitan Magistrates of the   area   having   jurisdiction   and   also   by   the   Additional District   Magistrates,   who   otherwise   are   exercising   the powers at par with the concerned District Magistrates either by delegation and/or special order.


[1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Founder & Secretary of NGO, Shaurya Ek Samman, Budhirajalawchambers@gmail.com

[2] CIVIL APPEAL NO. 175 OF 2022

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