Professional Documents
Culture Documents
Supreme Court Judgement
Supreme Court Judgement
Appellant
Versus
International Assets Reconstruction Co.
Ltd. & Ors.
.. Respondents
WITH
CRIMINAL APPEAL No. 737 OF 2014
(Arising out of S.L.P. (Crl.) No.4058 of 2012),
CRIMINAL APPEAL No. 738 OF 2014
(Arising out of S.L.P. (Crl.) No.4052 of 2012),
CRIMINAL APPEAL No. 739 OF 2014
(Arising out of S.L.P. (Crl.) No.4061 of 2012),
CRIMINAL APPEAL No. 740 OF 2014
(Arising out of S.L.P. (Crl.) No.4057 of 2012),
CRIMINAL APPEAL No. 741 OF 2014
(Arising out of S.L.P. (Crl.) No.4066 of 2012),
CRIMINAL APPEAL No. 742 OF 2014
(Arising out of S.L.P. (Crl.) No.4062 of 2012),
CRIMINAL APPEAL No. 743 OF 2014
(Arising out of S.L.P. (Crl.) No.4063 of 2012),
CRIMINAL APPEAL No. 744 OF 2014
(Arising out of S.L.P. (Crl.) No.4053 of 2012),
JUDGMENT
A. K. PATNAIK, J.
Leave granted.
Facts:
2.
The
Magistrate and possession has to be taken by a nonadjudicatory process and there is no question of
pointing out to the Chief Metropolitan Magistrate at
that stage that the person who is to be dispossessed is
a tenant.
The
He submitted that
He
all encumbrances and sub-section (2) of Section 269UE further provided that the transferor or any other
person who may be in possession of the immovable
property in respect of which an order under subsection (1) of Section 269-UD is made is required to
surrender or deliver possession of the property to the
appropriate
authority
or
any
other
person
duly
This Court
and
he
would
have
to
handover
the
compulsory
purchase
in
such
cases
would
He
He
He referred to the
He
He
the
decision
of
the
Chief
Metropolitan
He submitted
submitted
that
while
there
are
no
in
the
mortgage-deed,
prohibiting
the
He
Relying on this
the
application
under
Section
17(1)
of
the
He submitted
possession
under
Section
14
of
the
have
effect,
notwithstanding
anything
He
creditor
deciding
to
take
the
measures
11.
Act.
extracted hereinbelow:
65A.
Mortgagor's power to lease.(1) Subject to the provisions of sub- section
(2), a mortgagor, while lawfully in possession
of the mortgaged property, shall have power
to make leases thereof which shall be
binding on the mortgagee.
(2)(a) Every such lease shall be such as
would be made in the ordinary course of
management of the property concerned, and
in accordance with any local law, custom or
usage.
(b) Every such lease shall reserve the best
rent that can reasonably be obtained, and no
premium shall be paid or promised and no
rent shall be payable in advance.
(c) No such lease shall contain a covenant for
renewal.
(d) Every such lease shall take effect from a
date not later than six months from the date
on which it is made.
(e) In the case of a lease of buildings,
whether leased with or without the land on
which they stand, the duration of the lease
shall in no case exceed three years, and the
lease shall contain a covenant for payment of
the rent and a condition of re- entry on the
rent not being paid within a time therein
specified.
(3) The provisions of sub- section (1) apply
only if and as far as a contrary intention is
not expressed in the mortgage- deed; and the
provisions of sub- section (2) may be varied
of
the
SARFAESI
Act
shall
have
effect,
Section
13
of
the
SARFAESI
Act
is
extracted
hereinbelow:
13. Enforcement of security interest.(1).
Notwithstanding anything contained
in section 69 or section 69A of the
Transfer of Property Act, 1882 (4 of 1882),
any security interest created in favour of
any secured creditor may be enforced,
without the intervention of the court or
tribunal, by such creditor in accordance
with the provisions of this Act.
(2)
Where any borrower, who is under a
liability to a secured creditor under a
security agreement, makes any default in
repayment of secured debt or any
instalment thereof, and his account in
respect of such debt is classified by the
secured creditor as non-performing asset,
then, the secured creditor may require the
borrower by notice in writing to discharge
in full his liabilities to the secured creditor
within sixty days from the date of notice
failing which the secured creditor shall be
There is,
14
of
the
SARFAESI
Act
is
extracted
hereinbelow:
14. Chief Metropolitan Magistrate or
District Magistrate to assist secured creditor
in taking possession of secured asset (1)
Where the possession of any secured assets 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,
for the purpose of taking possession or control
of any such secured asset, request, in writing,
the Chief Metropolitan Magistrate or the
District Magistrate within whose jurisdiction
any such secured asset or other documents
relating thereto may be situated or found, to
take possession thereof, and the Chief
Metropolitan Magistrate or, as the case may be,
the District Magistrate shall, on such request
being made to him
(a) take possession of such asset and
documents relating thereto; and
(b) forward such assets and documents to
the secured creditor.
Provided that any application by the secured
creditor shall be accompanied by an affidavit
duly affirmed by the aurhorised 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;
18.
Hence,
take
the
assistance
of
the
Chief
Metropolitan
Where, therefore,
In
_____________________________________________
All that part and parcel of the property
consisting of Flat No. _______/Plot No. _______
In Survey No. _______/City or Town Survey
No. _______/Khasara no. _______Within the
registration
Sub-district_______
and
District_______.
Bounded;
On the North by
On the South by
On the East by
On the West by
Authorised Officer
(Name of the Institution)
Date:
Place:
___________________________________________
possession
notice
which
is
delivered,
affixed
or
Property Act and that the lease does not stand determined
in accordance with Section 111 of the Transfer of Property
Act. If the lessee surrenders possession, the lease even if
valid gets determined in accordance with clause (f) of
Section 111 of the Transfer of Property Act, but if he resists
the attempt of the secured creditor to take possession, the
authorised officer cannot evict the lessee by force but has to
file an application before the Chief Metropolitan Magistrate
or the District Magistrate under Section 14 of the SARFAESI
Act and state in the affidavit accompanying the application,
the name and address of the person claiming to be the
lessee.
before the High Court under Articles 226 and 227 of the
Constitution by any aggrieved party and if such a challenge
is made, the High Court can examine the decision of the
Chief Metropolitan Magistrate or the District Magistrate, as
the case may be, in accordance with the settled principles of
law.
23.
Debts
Recovery
Tribunal
has
powers
to
restore
In our
Union of India & Anr. [(2008) 1 SCC 125] for holding that the
SARFAESI Act provides for recovery of possession by nonadjudicatory process and it removes all fetters on the right
of the secured creditor and that the secured creditor is
entitled to take recourse to any one or more of the measures
specified in Section 13(4) of the SARFAESI Act to recover a
secured debt, notwithstanding anything contained in any
other law for the time being in force. The High Court has
also relied on the aforesaid decision of this Court in the case
of Transcore (supra) to record a finding that the scheme of
Section 13(4) read with Section 17(3) of the SARFAESI Act
shows
that
if
the
borrower
is
dispossessed
not
in
the
tenants
have
remedies
under
the
the
authority
mentioned
in
Section
33
of
the
We
may
now
consider
the
contention
of
the
instrument
or
by
oral
agreement
instrument
or
oral
agreement
Having
expressed
our
opinion
on
the
different
These orders
the
secured
creditors.
In
case
such
(v)
..J.
(A. K. Patnaik)
..J.
(V. Gopala Gowda)
New Delhi,
April 03, 2014.