Code of Criminal Procedure, 1973 - Section 482
- Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 - Section 14 - Maintainability of the application
before the Chief Judicial Magistrate Court.
K. RAMAKRISHNAN, J.
.................................................
Crl.M.C.No.5651 of 2013
& Crl.M.C.No.1041 of 2014
..................................................
Dated this the 21st day of
February, 2014.
O R D E R
Crl.M.C.No.5651/2013 was filed by the counter petitioners in
Crl.M.P.No.498/2012 on the files of the Chief Judicial Magistrate Court,
Kottayam, to set aside the order passed thereon under Section 482 of the Code
of Criminal Procedure.
2. Crl.M.C.No.1041/2014 was also filed by the counter petitioners in
CMP.No.132/2012 on the files of the Chief Judicial Magistrate Court, Palakkad,
to quash the order passed thereon under Section 482 of the Code of Criminal
Procedure.
3. In both these cases, the 2nd respondent Bank filed application before
the Chief Judicial Magistrate Court in respective places seeking assistance to
get delivery of the secured interest invoking Section 14 of the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as 'the SARFAESI Act'). In both these cases,
properties of the petitioners were mortgaged to the banks as security for availing
loan and they have committed default. Thereafter, notice under Section 13(2) of
the SARFAESI Act was sent to them. Since they have not sent any objection or
paid the amount within the specified time provided under Section 13 of the Act,
they filed applications seeking assistance of the Chief Judicial Magistrate to
take possession of the property secured. The learned Chief Judicial Magistrate
after satisfying the contents of the applications and the documents produced,
appointed an Advocate Commissioner to take possession of the property and
deliver the same to the bank. The action of the Chief Judicial Magistrate
appointing Advocate Commissioner to deliver the property is being questioned
before this Court by the petitioners in both these cases.
4. In both these cases, the common question raised by the respective
learned counsel for the petitioners was regarding maintainability of the
application before the Chief Judicial Magistrate Court under Section 14 of the
SARFAESI Act. Since common question arose for consideration in both these
cases, these petitions were disposed of by this Court by a common
judgment.
5. The counsel for the petitioners submitted that by virtue of Section
14 of the SARFAESI Act only Chief Metropolitan Magistrate or District
Magistrate alone is entitled to entertain the application for this purpose. So,
the Chief Judicial Magistrate has no jurisdiction to entertain the petition
under Section 14 of the SARFAESI Act. Further, they have also argued that,
wherever the Judicial First Class Magistrate has to exercise power, it has been
specifically mentioned under the SARFAESI Act and so it cannot be said that the
legislature was not aware of the difference between Chief Judicial Magistrate
and Chief Metropolitan Magistrate while using the terminology Chief
Metropolitan Magistrate or District Magistrate in that section. According to
the learned counsel, it is settled law that the courts cannot supply casus
omissus and purposive interpretation also is not available for the purpose of
supply of casus omissus in such cases as there is no ambiguity in the
terminology used in the section. They have relied on the Full Bench decision of
the Madras High Court in K. Arockiyaraj & Others v. The Chief Judicial
Magistrate, Srivilliputhur, Virudhunagar District & Others (CDJ 2013 MHC
3970), State of Mizoram v. Biakchhawna (1995 (1) SCC 156), Chandra Kishore Jha
v. Mahavir Prasad & Others (1999 (8) SCC 266), Babu Varghese & Others
v. Bar Council of Kerala & Others (1999 (3) SCC 422) and State of West
Bengal v. M/s. B.K. Mondal & Sons (AIR 1962 SC 779) in support of the case
and they wanted this Court to refer the matter to a Larger Bench to consider
the question again as, according to them, the earlier two Division Benches of
this Court did not consider the aspects, now considered by the Madras High
Court and Bombay High Court in this regard.
6. On the other hand, the counsel for the respondents in both the cases
submitted that it is clear from the intention of the Legislature that enacting
the present Act itself was to provide a speedy remedy for enforcing the right
of the financial institutions over their secured interest for realisation of
the amount and wherever Chief Metropolitan Magistrates are not available, Chief
Judicial Magistrates are vested with the power to do all the works of the Chief
Metropolitan Magistrate. Two Division Benches of this Court in Muhammed Ashraf
& Another v. Union of India & Others (2008 (3) KHC 935) and
Radhakrishnan V.N. v. State of Kerala & another (ILR 2008 (4) Ker. 863) had
held that the Chief Judicial Magistrates are empowered to do all the works of
the Chief Metropolitan Magistrate in non metropolitan areas and in the latter
decision, the request for reference to a Larger Bench for considering the same
purpose was declined aswell. So, under the circumstances, there is no merit in
the submission made by the counsel for the petitioners.
7. It is an admitted fact that in both these cases, the banks have filed
applications before the respective Chief Judicial Magistrate Courts namely
Kottayam and Palghat for enforcing their secured interest invoking Section 14
of the SARFAESI Act. Section 14 of the SARFESI Act (as stood prior to
amendment) reads as follows:
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 requird 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 assets, 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 asset and documents to the secured creditor.
(2) for the purpose of securing compliance with the provisions of
sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate
may take or cause to be taken such steps and use, or cause to be used, such
force, as may, in his opinion, be necessary.
(3) No act of the Chief Metropolitan Magistrate or the District
Magistrate done in pursuance of this section shall be called in question in any
court or before any authority.
8. Though Section 14 of the SARFAESI Act was amended by Amendment Act 1
of 2013, which came into force from 4.1.2013, there is no change made by the
amendment to Section 14(1) of the SARFAESI Act.
9. It is true that, in Section 14 it has been mentioned that, the
application has to be filed before the Chief Metropolitan Magistrate or
District Magistrate. In the decision reported in Arockiyaraj's case (supra),
the Full Bench of the Madras High relying on the decisions of Bombay High Court
in IndusInd Bank Ltd. v. The State of Maharashtra (CDJ 2008 BHC 520) and Arjun
Urban Co-operative Bank Ltd., Solapur v. C.J.M. Solapur Court [2009 (2) D.R.T.C
431 (Bom)] held that only Chief Metropolitan Magistrates or District
Magistrates are empowered to entertain the application under Section 14 of the
SARFAESI Act. But, the Division Bench of this Court in Muhammed Ashraf &
Another v. Union of India & Others (2008 (3) KHC 935) has held that the
powers of the Chief Judicial Magistrate in non metropolitan area and the Chief
Metropolitan Magistrate in metropolitan area are one and the same and the
application under Section 14 of the SARFAESI Act can be entertained by the
Chief Judicial Magistrate in a non metropolitan area. The question whether this
is casus omissus was considered by the Division Bench in para 5 of the decision
which reads as follows:
"5. Learned counsel for the petitioners argued that so long as the
word 'Chief Judicial Maistrate' is not mentioned in S.14 of the Securitisation
Act, merely beause Chief Metropolitan Magistrate is mentioned in S.14, it
cannot be stated that Chief Judicial Magistrate in non metropolitan areas also
has the power under S.14. Relying on the decison of the Hon'ble Supreme Court
in M/s. Unique Butyle Tube Industries Pvt. Ltd. v. U.P. Financial Corporation
and Others, 2003 HKC 852: 2003 (2) SCC 455: 2003 (113) Comp Cas 374: 2003 All
LJ 427: AIR 2003 SC 2103 it was argued that the Court cannot supply the
omissions by the Legislature. While interpreting a provision, the Court only
interprets the law and cannot legislate it. It is for the legislature to amend,
modify or repeal it if it is deemed necessary. By the principle of casus
omissus, Court cannot supply the law. In the above case, the Hon'ble Supreme
Court was considering the Recovery Debts Due to Banks and Financial
Institutions Act (RDBI Act). Under S.34 (1) of the above Act, it was mentioned
that the provisons of that Act have overriding effect over other Acts. But, the
question is whether RDBI Act was enacted in addition to other acts. Sub-section
(2) of S.34 of the above Act provides that it is in addition to certain
specified Acts like Financial Corporation Act etc. Uttar Predesh Public Monies
(Recovery of Dues )Act, 1972 (UP. Act) was not included under S.34(2)of the
RDBI Act. Therefore, the Hon'ble Supreme Court has held that Financial
Corporation can approach for recovery of dues under the RDBI Act or under the
Financial Corporation Act, but, not under the U.P.Act, 1972 as it was not
enacted in additon to the U.P.Act, 1972. Here, the position is entirely different.
The question is whether the term "Chief Metropolitan Magistrate" in
metropolitan areas will include Chief Judicial Magistrate in non metropolitan
areas. We are of the view that legislation has to be understood in a reasonable
manner. In the context of the definition in the Cr.PC, it can be gathered that
a Chief Judicial Magistrate in non metropolitan area and Chief Metropolitan
Magistrate in metropolitan area are used in legal parlance similarly. As held
in Holmes v. Bradfield Rural District Council, 1949 (1) All ER 381 (page 384)
and Nasiruddin v. State Transport Appelate Tribunal, 1975 (2) SCC 671:1976 (1)
SCR 505 : AIR 1976 SC 331 (page 338) this Court has to adopt 'just reasonable
and sensible' interpretation. In this connection, we refer to the following
observations of the Denning L.J. in Seaford Court Estates Ltd. v. Asher, 1949
(2) All ER 155, p. 164 (CA):
"When a defect appears a Judge cannot simply fold his hands and
blame the draftsman. He must set to work on the constructive task of finding
the intention of Parliament and then he must supplement the written words so as
to give 'force and life' to the intention of the Legislature. A Judge should
ask himself the question how, if the makers of the Act had themselves come
across this ruck in the texture of it, they would have straightened it out? He
must then do as they would have done. A Judge must not alter the material of
which the Act is woven, but he can and should iron out the creases".
Though the above view was criticised by House of Lords in Magor and St.
Mellons R.D.C v. Newport Corporation, 1951 (2) All ER 839 (HL), it was quoted
with approval by the Hon'ble Supreme Court in M. Pentiah v. Muddala
Veeramallapa, 1961 (2) SCA 249: 1961 (2) SCR 295: 1963 (1) SCJ 768: AIR 1961 SC
1107, Bangalore Water Supply v. A. Rajappa, 1978 (2) SCC 213: 1978 Lab IC 467:
1978 (1) Lab LJ 349: 1978 SCC (Lab) 215: 1978 CLNR 96: 1978 (1) SCJ 481 :AIR
1978 SC 548 at.p.552 ,561, NEPC Micon Ltd.v.Magna Leasing Ltd. 1999 KHC 488:
1999 (2) KLT SN 45: 1999 (2) KLJ 59 : 1999 (2) KLJ NOC 17: 1999 (4)SCC 253: AIR
1999 SC 1952, p. 1957) etc. But, House of Lords in Inco Europe Ltd. and Others
v. First Choice Distribution (a firm) and Others, 2000 (2) All ER 109, p. 115)
held that Court can add words in its interpretative process in suitable cases
if omission or inadevertence of drafting is noticed, to give effect to the
purpose of the Legislature. In Padmasundara Rao v. State of T.N., 2002 KHC 575:
2002 (2) KLT SN 44: 202 (2) KLJ NOC 1 : 2002 (3) SCC 533: AIR 2002 SC 1334
p. 1340) a Constitution Bench of the Supreme Court held that
"a casus omissus cannot be supplied by the Court except in the case
of clear necessity and when reason for it is found in the four corners of the
statute itself .....".
After referring to the decisions in Reserve Bank of India v. Peerless
General Finance and Investment Co.Ltd., 1987 KHC 850: AIR 1987 SC 1023 : 1987
(61) Comp Cas 663 : 1987 (1) SCC 424 and Kehar Singh v. State (Delhi Admn.),
1988 KHC 1020 : 1988 (3) SCC 609 : 1988 SCC (Cri) 711: 1988 (2) KLT SN 47 : AIR
1988 SC 1883 and various other decisions on the point, the Hon'ble Supreme
Court in National Insurance Co.Ltd. v. Laxmi Narain Dhut, 2007 (1) KHC 1054:
2007 (3) SCC 700 :JT 2007 (4) SC 169: ILR 2007 (2) Ker. 683 : AIR 2007 SC 1563
: 2007 (2) KLT 470 (SC) has considered how statute should be interpreted. The
hon'ble Supreme Court held as follows:
"34. A statute is an edict of the Legislature and in construing a
statute, it is necessary to seek the intention of its maker. A statute has to
be construed according to the intent of those who make it and the duty of the
Court is to act upon the true intention of the Legislature. If a statutory
provision is open to more than one interprettion the Court has to choose that
interpretation which represents the true intention of the Legislature. This
task very often raises difficulties because of various reasons, in as much as
the words used may not be scientific symbols having any precise or definite
meaning and the language may be an imperfect medium to convey one's thought or
that the assembly of Legislatures consisting of persons of various shades of
opinion purport to convery a meaning which may be obscure. It is impossible
even for the most imaginative Legislature to foresee all situations
exhaustively and circumstances that may emerge after enacting a statute where
its application may be called for. Nonetheless, the function of the Courts is
only to expound and not to legislate. Legislation in a modern State is actuated
with some policy to curb some public evil or to effectuate some public benefit.
The legislation is primarily directed to the problems before the Legislature
based on information derived from past and present experience. It may also be
designed by use of general words to cover similar problems arising in future.
But, from the very nature of things, it is impossible to anticipate fully the
varied situations arising in future in which the communicate such indefinite
referents are bound to be in many cases lacking in clarity and precision and
thus giving rise to controversial questions of construction. The process of
construction combines both literal and purposive approaches. In other words the
legislative intention i.e., the true of legal meaning of an enactment is
derived by considering the meaning of the words used in the enactment in the
light of any discernible purpose or object which comprehends the mischief and
its remedy to which the enactment is directed. (see District Mining Officer and
Others v. Tata Iron and Steel Co. and Another, JT 2001 (6) SC 183).
35. It is also well settled that to arrive at the intention of the
legislation depending on the objects for which the enactment is made, the Court
can resort to historical, contextual and purposive interpretation leaving
textual interpretation aside. Francis Bennion in his book "Statutory
Interpretation" described "purposive interpretation" as
under:
"A purposive construction of an enactment is one which gives effect
to the legislative purpose by--
(a) following the literal meaning of the enactment where that meaning is
in accordance with the legislative purpose, or
(b) applying a strained meaning where the literal meaning is not in
accordance with the legislative purpose".
Here, in this case, there is no casus omissus also. Chief Judicial
Magistrates in metropolitan areas are designated as Chief Metropolitan
Magistrates and vice versa mutatis mutandis by implication and by reference to
the area of jurisdiction. Chief Judicial Magistrate in a non metropolitan area
stands in the same footing as Chief Metropolitan Magistrate in metropolitan
area and, their designations are used synonymously to denote the authority
depending upon where one is agree with the view of the learned Single Judge
that in non metropolitan areas, apart from the District Magistrate, the powers
can be exercised by the Chief Judicial Magistrate also. A similar view was
taken by the Madras High Court in 7312 of 2004 (MANU/TN/7582/2006) and we are
unable to agree with the decision of the Bombay High Court (Aurangabad)
in IndusInd Bank Ltd. v. The State of Maharashtra in Crl.WP.Nos.214 and 215 of
2008 (MANU/MH/0375/2008) which took a contrary view)".
10. This was affirmed by another Division Bench of this Court in
Radhakrishnan V.N' s case (supra). In that case also a request was made to
refer the matter to a Larger Bench to consider the question as to whether the
Chief Judicial Magistrate has got power to entertain the application under
Section 14 of the SARFAESI Act and the Division Bench in that case held that
there is no necessity to refer Muhammed Ashraf's case (supra) to a Larger Bench
for consideration and concurred with the decision in Muhammed Ashraf's case
(supra).
11. There is no dispute regarding the proposition laid down in the
decisions reported in State of Mizoram v. Biakchhawna (1995 (1) SCC 156),
Chandra Kishore Jha v. Mahavir Prasad & Others (1999 (8) SCC 266), Babu
Varghese & Others v. Bar Council of Kerala & Others (1999 (3) SCC 422)
and State of West Bengal v. M/s. B.K. Mondal & Sons (AIR 1962 SC 779)
regarding the question as to whether the courts have got power to supply casus
omissus when there is no ambiguity in the provisions and when certain
procedures are provided under the statute, it has to be done in the same manner
as it is provided etc. Further, in the decision reported in Raman Gopi v.Kunju
Raman Uthaman (2011(4) KLT 458), the Full Bench of this Court held that when a
Bench of higher number of judges of the concerned court decided a question on
the subject, then that is binding on the Bench of co- equal judges or lesser
number of judges of that court. So, under the circumstances, the decisions on
the subject rendered by two Division Benches of this Court in Muhammed Ashraf's
case and Radhakrishnan V.N's case (supra) are binding on this Court. Further,
it is settled law that, if a decision has been rendered by the same High Court
, then any decision rendered by any other High Court is not binding on the
other High Court but it has got only persuasive value. This was so held in the
decision reported in Commissioner of Income Tax v. Tana Electricity Supply Ltd
(1994 ITR 727) relying on the decision reported in Madhava Rao Scindia v. Union
of India (AIR 1971 SC 530) held as follows:
"The general principles with regard to precedents are: (a) The law
declared by the Supreme Court being binding on all courts in India, the
decisions of the Supreme Court are binding on all courts, except, however, the
Supreme Court itself which is free to review the same and depart from its
earlier opinion if the situation so warrnts. What is binding is, of course, the
ratio of the decision and not every expression found therein.
(b) The decisions of the High Court are binding on the subordinate
courts and authorities or Tribunals under its superintendence throughout the
territories in relation to which it exercises jurisdiction. It does not extend
beyond its territorial jurisdiction.
(c) The position in regard to the binding nature of the decisions of a High
Court on different Benches of the same court, may be summed up as follows:
(i) A single judge of a High Court is bound by the decision of another
single judge or a Division Bench of the same High Court. It would be judicial
impropriety to ignore that decision. Judicial comitty demands that a binding
decision to which his attention had been drawn should neither be ignored nor
overlooked.
(ii) A Division Bench of a High Court should follow the decision of
another Division Bench of equal strength or a Full Bench of the same High
Court. If one Division Bench differes from another Division Bench of the same
High Court, it should refer the case to a larger Bench.
(iii) Where there are conflicting decisions of courts of co-ordinate
jurisdiction, the later decision is to be preferred if reached after full
consideration of the earlier decisions.
(d) the decision of one High Court is neither binding precedent for
another High Court nor for courts or Tribunals outside its territorial
jurisidiction".
12. The same view was reiterated by our High Court in the decision
reported in Josekutty v. State of Kerala (2013 (1) KHC 241) wherein it has been
held that Single Judge is bound to follow the Division Bench decisions. The
Single Judge cannot make a reference to Division Bench for the reason that the
views of the Division Bench are not in agreement with his views. A Full Bench
of this Court in Peter v. Sara (2006 KHC 1450) = (2006 (4) KLT 219) also
expressed the same view. Further, another Single Bench of this Court in the
decision reported in Federal Bank Ltd. v. Punnus (2013 (4) KLT 578) has held
that the Madras decision is not binding in view of the Division Bench decision
of this Court on this aspect. In view of the above discussions, there is no
merit in the submission made by the counsel for the petitioners that the Chief
Judicial Magistrate has no jurisdiction to entertain the application under
Section 14 of the SARFAESI Act and there is no need to refer the matter to a
Larger Bench for reconsideration in view of the fact that, that request was
turned down by a Division Bench of this Court in Radhakrishnan V.N's case
(supra). Further, in the decision reported in Radhakrishnan V.N's case (supra),
it has been held that since the proceedings sought to be challenged is not one
taken under the provisions of the Criminal Procedure Code, but it is one under
Section 14 of the SARFAESI Act, the application filed under Section 482 of the
Code of Criminal Procedure is not maintainable in view of the statutory bar
contained under Section 14(3) of the SARFAESI Act. Further in the decision
reported in Standard Chartered Bank v. Noble Kumar (2013 (4) KLT 531 (SC), the
Hon'ble Supreme Court has held that the remedy of the petitioners in such cases
is to file appeal before the Debt Recovery Tribunal after dispossession under
Section 17 of the Act. That was also a case went from Tamil Nadu against an
action taken by the Chief Judicial Magistrate invoking the power under Section
14 of the SARFAESI Act. So, under the circumstances, there is no merit in these
petitions and these petitions are liable to be dismissed.
In the result, these petitions are dismissed.
Sd/- K. RAMAKRISHNAN,
JUDGE.
cl /true copy/ PS to Judge
Comments
Post a Comment