India: FAQs On Section 14 Of The Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002

Last Updated: 23 January 2017
Article by Sneha Bhawnani

This article shall deal with material FAQs on Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as the "Act"). The aim and purpose of this article is to provide a deep insight regarding the purport of Section 14 and to highlight the shift in the role of the Chief Metropolitan Magistrate (hereinafter referred as "CMM") and District Magistrate (hereinafter referred as the "DM") after amendments to Section 14 in the year 2012 and 2016. Further, this article shall also provide useful understanding regarding the circumstances in which the rights of a bona-fide third party shall be determined by the CMM or DM. Thus, the FAQs shall cover the scope, ambit and purpose of Section14 in a holistic perspective.

ESSENCE OF SECTION 14

In simple terminology, the essence and meaning of Section 14 the Act is that a secured creditor may seek the help and assistance of the CMM (hereinafter referred as "CMM") or the DM (hereinafter referred as "DM") for the purpose of taking over of the possession of the secured asset or property instead of resorting to recovery of the asset by means of self-help.

The extract of Section 14 has been provided below:

"(1) 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, 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 asset and documents to the secured creditor.

1[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 sub-clause (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 account of the borrower has been classified as a nonperforming asset;

(vi) affirming that the period of sixty days notice as required by the provisions of sub-section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower;

(vii) the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower;

(viii) the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub-section (4) of section 13 read with section 14 of the principal Act;

(ix) that the provisions of this Act and the rules made thereunder had been complied with:

Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets 2[within a period of thirty days from the date of application]:

3[Provided further that if no order is passed by the Chief Metropolitan Magistrate or District Magistrate within the said period of thirty days for reasons beyond his control, he may, after recording reasons in writing for the same, pass the order within such further period but not exceeding in aggregate sixty days.]

Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act.]

4[(1A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,—

(i) to take possession of such assets and documents relating thereto; and

(ii) to forward such assets 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 5[any officer authorised by the Chief Metropolitan Magistrate or District Magistrate] done in pursuance of this section shall be called in question in any court or before any authority."

Keeping in mind the above mentioned extract, the FAQs dealing with the same are provided below:

1) What is the procedural mandate of Section14?

Ans.) The following points clearly explain the procedural mandate of Section 14:

  • The CMM or DM may grant assistance to the secured creditor in taking possession of the secured asset if a request in writing is made to the CMM or DM within whose jurisdiction the secured asset or other document is situated.
  • The written request shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor affirming that the provisions of the SARFAESI Act and Rules have been complied with by the secured creditor.
  • On being satisfied about the contents of the affidavit the CMM or DM shall pass necessary orders for the purpose of taking the possession of secured assets.
  • The requirement of the affidavit is not applicable to those proceedings which are already pending before the CMM/DM on the date of commencement of the Act.
  • The CMM/DM may delegate the powers to a subordinate officer.
  • CMM/DM may authorize the use of force for due compliance with the Act and Rules as necessary in the opinion of such CMM/DM
  • The order of the CMM/DM cannot be questioned in any Court of law or authority. However, the writ jurisdiction under S. 226 and 227 is not barred6.

2) What are the changes that have been made in Section 14 by virtue of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016?

Ans.) The changes made in Section 14 by virtue of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 (hereinafter referred as the "Amendment Act, 2016") has been summarized in the following points:

  • Second proviso to S. 14(1) – The CMM/DM after being satisfied with the contents of the Affidavit shall pass suitable orders for the purpose of taking possession of the secured asset within a period of thirty days from the date of application
  • The insertion of a proviso after the second proviso- In circumstances beyond the control of the CMM/DM, the time period of thirty days may be extended to sixty days after recording of the reasons. No further extension beyond sixty days, in aggregate, is permissible.
  • The aforesaid insertions have been made after taking into account the delayed disposal of the cases by the CMMs/DMs.
  • The said insertions also take into account the ratio decidendi of the landmark judgement of the Supreme Court in Harshad Govardhan Sondagar v International Assets Reconstruction Co. Ltd. &Ors7and Vishal N. Kalsaria v Bank of India &Ors8. The said case laws have been discussed in detail in question nos. 11,12,13

3) Whether any special right is created in favour of the creditor by virtue of Section 14?

Ans.) In order to understand whether any special right has been created in favour of the secured creditor or not by virtue of Section 14, reference must be made to certain important case laws. In the case Canara Bank, Ashram Road v. Collector of Stamps & Ors9it was held the order which is passed by the DM or CMM under Section 14 of the SARFAESI Act is not an "instrument" as per Section 2(i) of the Gujrat Stamp Act, 1958. Further, such order of the CMM/DM does not create any special right or liability in favour of the secured creditor to bring it within the fold of the expression "conveyance" as per Section 2(g) of the Gujrat Stamp Act, 1958. The Court also held that a panchnama, which is drawn after the possession of the secured asset is taken over by the secured creditor in accordance with the provisions of the SARFAESI Act, does not create any specific special right in favour of the secured creditor. Thus, no Thus, no extraordinary right is created in favour of the secured creditor by virtue of Section 14.

4) Does Section 14 require adjudication of rights and liabilities by the CMM or DM?

Ans.) In this context, reference must be made to a case law to comprehend the position of law prior to the amendment in 2016. In the case of Hari Trading Corporation v Bank of Baroda10, the Bombay High Court held that Section 14 merely envisages that the CMM or DM, as the case may be, has the power to pass an order for the purpose of assisting the secured creditor. However, such assistance does not involve adjudication of rights and liabilities of the parties by the CMM or DM. Further, the right of the secured creditor to take over the possession of the secured asset of the borrower is provided in 13(4) and not in Section 14. Therefore, there is no requirement of providing right to hearing to the borrower by the CMM or DM and Section 14. Thus, in such circumstances, the remedy of the borrower is to file an appeal against the decision of the CMM or DM under Section 17. However, by virtue of the Amendment Act, 2016 such position has undergone a substantial change as discussed in question no. 13

5) Whether there are any contradictory views on the powers of CJM and CMM after making due reference to the Code of Criminal Procedure, 1973?

Ans.) In the case K. Arockiyaraj & Ors v CJM11, it was held by the Madras High Court that Code of Criminal Procedure, 1973 (hereinafter referred as the "CrPc") provisions separately deal with the functions, powers and jurisdiction of the CMM, DM and CJM (hereinafter referred as the "CJM") and the High Court has the absolute power to appoint the CJM to perform judicial and administrative functions analogous to the power of CMM in the metropolitan areas. However, keeping in mind the legislative mandate behind Section 2(2) and Section 35 of the SARFAESI Act, Section 14(1) must be given its true meaning without importing the CrPc provisions. It was further held that as the language of Section 14(1) is free from any ambiguity therefore there is clarity that in metropolitan areas, the assistance of the CMM or DM can be availed by the secured creditor for the purpose of taking over the possession of the secured asset. In non-metropolitan areas, such assistance shall be extended only by the DM alone not CJM. The subsequent judgements in T. John Bose v State Bank of India & Ors12 and T.C. Ramadoss & Ors. v The Chief Manager & Authorised Officer State Bank of India and Ors.13 have placed reliance on the ratio decidendi of the K. Arockiyaraj case.

On the contrary, in the case Federal Bank Ltd. v Punnus14 the Court placed reliance on the ratio decidendi of Muhammed Ashraf v Union of India in which it was held that CJM in non-metropolitan areas has the same powers as that of CMM in metro-politan areas and therefore there is no bar on exercise of power by the CJM under section 14 in non-metropolitan areas. It was further held that the CrPc provisions can be called in to aid in order to interpret the SARFAESI Act provisions, as may be required.

6) Who can act in capacity of an officer under Section 14(1-A)?

Ans.) In the case Andhra Bank &Ors v Dinesh Kumar Agarwal &Ors15, the Debt Recovery Appellate Tribunal (hereinafter referred as the "DRAT") that the assistance provided by the Assistant General Manager of the bank to take over the possession of the secured property did not imply that the possession was taken over by an officer as required under Section 14. Therefore, it was held that such possession of the secured property was taken over by the secured creditor in accordance with Section 13(4) and not Section 14.

In the case of S. Chandramohan&Anr v CMM, Chennai16, the Madras High Court interpreted the term "may" as provided in Section 14(1-A) and held that the said provision is not mandatory in nature. Therefore, discretionary power is vested in the CMM or DM to authorize an officer to take over the possession of the secured asset and thereafter pass over such assets to the secured creditor. In the facts and circumstances of this case, it was held that an Advocate Commissioner being an officer of the Court can discharge all duties more efficaciously than a subordinate officer. Also, such Advocate Commissioner shall perform all functions not as a subordinate to the CMM or DM but essentially as an officer of the Court.

In the case Federal Bank Ltd. v Punnus17, it was held that the function of the Advocate Commissioner to take over the possession of the secured assets is ministerial in nature and the said function is performed by the Advocate Commissioner as an officer who is sub-ordinate to the Court and not subservient in service to the CMM or DM who presides the Court.

7) What kind of power is delegated under Section 14?

Ans.) The Madras High Court has held that the power which may be delegated by the CMM or DM to an officer, as provided in Section 14(1-A) of the SARFAESI Act, is merely the power to assist and such power is executive and not judicial in nature. This was held by the Court to uphold the principle of 'delegatapotestas non potestdeligari' which essentially implies that a judicial function of an adjudicatory body shall not be delegated.

8) What is the restraint, if any, on the jurisdiction of the Magistrate under Section 14?

Ans.) In order to understand the restraint, if any, on the jurisdiction of the Magistrate under Section 14, reference must be made to the Madras High Court judgement in P. Palani & Anr v Central Bank of India &Ors18. In this case it was held that the jurisdiction of the CMM under Section 14 is to provide assistance to the secured creditor for the purpose of taking over the possession of the secured asset and not to permit the borrower or the debtor to deal with the said secured asset to acquire money in any manner whatsoever.

Further, the DRAT held that that the Magistrate under Section 14 does not have the requisite jurisdiction to adjudicate on matters pertaining to the rightful and correct classification of the borrower's account as a non-performing account by the bank19.

9) What the legislative mandate behind the requirement of an affidavit is as provided in Section 14?

Ans.) In order to comprehend the legislative mandate behind the enactment of Section 14, reference must be made to Shiv Charanlal Sharma v Allahabad &Ors20in which the Court held that the term "shall", as provided in the proviso to Section 14, must be interpreted as mandatory. Therefore, non-filling of an affidavit may lead to fatal consequences. However, the requirement of filing an affidavit is exempted for those proceedings which were already pending before the CMM or DM before the enactment of the Amendment Act on 15th January, 201321.

Further, in the event that the Magistrate is not satisfied with the contents of the affidavit, such Magistrate has the power to even reject the said application on the grounds of being dissatisfied with the contents of the affidavit22.

10) What is the significance of the amendment in 2012 in the context of the role of the CMM/DM?

Ans.) The significance of the amendment in 2012 with regards to the role of the CMM/DM was highlighted in the case of Jaffar v Dhanalakshmi Bank23 in which the Court held that prior to the amendment of Section 14, the only requirement of Section 14 was satisfaction of the Magistrate in relation to the documents produced by the parties and there was no necessity of any detailed inquiry for the purpose of extending assistance to the secured creditor. Thus, prior to the amendment in 2012, the role of the CMM/DM was limited; however, the post the said amendment the role of the CMM/DM has become broad and pervasive, as discussed in this article.

11) The importance of the landmark Supreme Court judgement on determination of rights of the tenant?

Ans.) In the case Harshad Govardhan Sondagar v International Assets Reconstruction Co. Ltd. & Ors24the Supreme Court held as follows-

  • Section 13 of SARFAESI overrides Section 68 and 69 of the Transfer of Property Act, 1882 ("the Act, 1882") but not all its provisions in relation to the rights of the lessee, under a valid lease agreement, which is created prior to the receipt of notice, under Section 13(2), by the borrower
  • In the event that the lessee has the possession of the secured asset which is in accordance with Section 65A of the Act, 1882 and such lease has not been terminated as provided in Section 111 of the Act, 1882 then the CMM/DM cannot pass an order for the secured creditor to take over the possession of the secured asset.
  • A valid lease agreement shall be considered to be terminated as per Section 111(f) of the Act, 1882 when the lessee voluntarily surrenders the secured asset. In such event, the order by the CMM/DM to pass over the possession of the secured asset to the secured creditor may be passed.
  • The CMM/DM shall adhere to the principles of natural justice in order to determine the existence of a valid tenancy.
  • In order to proof the existence of valid tenancy, the tenant must produce proof of execution of a registered instrument. In the event that there is no registered agreement then the CMM/DM shall come to a conclusion that the tenant is not entitled to possession of the secured asset from the date of the instrument or date of the delivery of the said possession.

In the case V. Vishwanathan &Ors v. District Collector-Cum Magistrate, Coimbatore District & Ors25it was held that the question of the possession of the secured asset can be determined only after conducting proper enquiry and issuing notice to all the affected parties including the tenants/lessee.

In the case Vishal N. Kalsaria v Bank of India &Ors26it was held that non-registration of a lease agreement does not render such tenancy nugatory and inconsequential. It was held that due attention must be paid to the relationship between two parties in the lease agreement along with the rights, obligations and liabilities of each party. Further, the fact that there is regular payment by the tenant and acceptance of rent by the lessor assumes significant importance in order to decide the claim of valid tenancy. Also, no undue advantage can be taken on the grounds that there is no existence of a valid lease agreement.

12) On what grounds can the Vishal case be distinguished?

Ans.) In a recent case known as Atul Daulatrai Desai v State of Maharashtra &Ors27 the Court distinguished the Vishal N. Kalsaria case (supra) on the grounds that in the Vishal N. Kalsaria there was no dispute regarding the bona fide claim of the tenant, however, in the event that the tenancy claims are dubious and bogus then separate considerations apply. Accordingly the Court held as follows-

"We do not think that any claim of tenancy vaguely set up and without any proof or contemporaneous record of its creation and continuance is protected and with greatest respect by the judgment of the Hon'ble Supreme Court. A judgment cannot be read like statutes. Eventually if the Rent Control Legislation and the benefit thereof can be availed off by tenants and occupants, the initial burden is on them to establish and prove the existence of a tenancy and that will be in jeopardy by the act of either the principal borrower or the bank. In the present case, we do not think any such proof is forthcoming, more so, when the challenge to the order passed under Section 14(1) is a clear afterthought. It is also apparent that parties like the petitioner would have to establish that the mortgagor and mortgagee were aware of the creation of the tenancy in the sense it is subsequent to the mortgage or otherwise. If it is subsequent, then, the creditor's consent has been taken. If it is prior, then, the tenant on becoming aware of the bank's action has filed legal proceedings claiming a declaration that the tenancy is valid, subsisting and binding."

13) Whether the landmark judgements by the Supreme Court in the Harshad Govardhan and Vishal Kalsaria case have any significance on the timelines as inserted in Section14?

Ans.) The timelines have been inserted in Section 14 by virtue of the Amendment Act, 2016 keeping in mind the ratio decidendi of the Supreme Court in the Harshad Govardhan (supra) and Vishal Kalsaria case (supra). In other words, according to the rulings of the aforesaid cases, the CMM/DM must determine the existence of any third party interests in the secured property and accordingly provide opportunity of hearing to such third party as may be required on case to case basis.

Conclusion

The FAQs briefly and comprehensively cover the journey of revamping Section 14 from a blunt tool to a sharp weapon. The importance of the amendments is evident from the fact that ,prior to the amendments, the proceeding before the CMM/DM under Section 14 were held to be merely executory in nature; however, after the Harshad Govardhan and Vishal Kalsaria case along with the amendments by virtue of the Amendment Act, 2016 such position seems to have undergone a significant change, that is to say, the CMM or DM shall provide an opportunity of hearing to a bona-fide third party in order to uphold the principles of natural justice and thereafter decide the matter based on the facts and circumstances of each case. Subsequently, it will be desirable to witness the evolution of judicial case laws to holistically ascertain the impact of the amendments on Section 14 of the SARFAESI Act.

Footnotes

1. The provisos inserted by the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2012 (1 of 2013), s. 6(a) (w.e.f 15-1-2013).

2. Inserted by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 (44 of 2016), s. 12(i) (w.e.f. 1-9-2016) vide S.O. 2831(E), dated 1-9-2016.

3. Inserted by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 (44 of 2016), s. 12(ii) (w.e.f. 1-9-2016) vide S.O. 2831(E), dated 1-9-2016.

4. Inserted by the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2012 (1 of 2013), s. 6(b) (w.e.f. 15-1-2013).

5. Inserted by the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2012 (1 of 2013), s. 6(c) (w.e.f. 15-1-2013)

6. Veena Textiles Ltd. &Anr v Authorised Officer, IFCI Ltd. &Anr I (2015)BC73(DB)(Mad)

7. 2014) 6 SCC 1

8. [(2016) 3 SCC 762]

9. III(2014)BC89 (DB) (Guj); Spl C. Application No. 2113 of 2012 decided on 3-07-2013

10. III(2015)BC284(Bom.) ;W.P. Nos 1159 and 11460 of 2014 and 239,992 and 1045 of 2015- decided on 23-02-2015

11. AIR 2013 Mad 206 ; W.P(MD)No.11078 of 2011, W.P(MD)No.7155 of 2012 and 4525, 9833 of 2013 decided on 27-08-2013

12. I(2015)BC50(DB)(Mad)

13. AIR2015Mad67 ; W.P. Nos 24598, 24353 of 2014 and M.P. Nos. 1,2,3 of 2014 decided on 29-01-2015

14. I (2014)BC355(Ker); O.P. (DRT) No. 3311 of 2013 decided on 29-10-2013

15. I (2014) BC1(DB)(CN)(Cal); M.A.T No. 389 of 2013 with CAN 3023 of 2013 decided on 23-04-2013

16. III(2015)BC588(DB)(Mad); Writ Petition No. 29366 of 2014 and M.P. Nos 1 and 2 of 2014- decided on 19-11-2014

17. I (2014)BC355 (Ker); O.P. (DRT) No. 3311 of 2013 decided on 29-10-2013

18. III(2015)BC681 (DB) (Mad.) ; W.P. No. 22788 of 2014 and M.P. No. 2 of 2014- decided on 21-01-2015

19. U-Clix Infra Ltd. v State Bank of India & Ors,III (2015) BC 78 (DRAT)

20. IV(2015)BC416 (DB) (All.)

21. Reeta Srivastava v DM, II (2015) BC 75 (DB) (All)

22. Syndicate Bank & Anr v Kaliji Engineering Works &Ors, IV(2015)BC473(DB)(Cal)

23. III(2014)BC479(Ker); Cr M.C. No. 938 of 2014 decided on 30-01-2014

24. 2014) 6 SCC 1

25. (IV(2015)BC329(Mad.)

26. [(2016) 3 SCC 762]

27. 2016(6)MhLJ321; Writ Petition No.7745 of 2016, decided on 07-07 2016

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions