1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).6295 OF 2015

The Authorised Officer, Indian Bank          ..…Appellant(s)

Versus

D. Visalakshi and Anr.      ….Respondent(s)

With  

Civil Appeal No(s) 7554­7555 of 2019  (Arising out of SLP (C) No(s).12430­12431 of 2015)

Criminal Appeal No(s) 1463­1464 of 2019  (Arising out of SLP (Crl.) No(s).393­394 of 2019)

Civil Appeal No(s) 7557 of 2019  (Arising out of SLP (C) No(s) 23193 of 2019) (Arising out of Diary No(s).47134 of 2018

Civil Appeal No(s) 7558 of 2019  (Arising out of SLP (C) No(s).7121 of 2019)

Criminal Appeal No(s) 1465 of 2019  (Arising out of SLP (Crl.) No(s).3507 of 2019)

Criminal Appeal No(s) 1478 of 2019  (Arising out of SLP (Crl.) No(s).3689 of 2019)

Criminal Appeal No(s) 1466 of 2019  (Arising out of SLP (Crl.) No(s).4351 of 2019)

Criminal Appeal No(s) 1467 of 2019  (Arising out of SLP (Crl.) No(s).4293 of 2019)

2

Criminal Appeal No(s) 1468 of 2019  (Arising out of SLP (Crl.) No(s).4387 of 2019)

Criminal Appeal No(s)  1469 of 2019  (Arising out of SLP (Crl.) No(s)  8870  of 2019)

(Arising out of Diary No(s).15461 of 2019)

Criminal Appeal No(s) 1470 of 2019  (Arising out of SLP (Crl.) No(s) 8871 of 2019)

(Arising out of Diary No(s).15465 of 2019)

Criminal Appeal No(s) 1471 of 2019  (Arising out of SLP (Crl.) No(s) 8872  of 2019)

(Arising out of Diary No(s).15467 of 2019)

Criminal Appeal No(s).900 of 2019

Criminal Appeal No(s) 1472 of 2019  (Arising out of SLP (Crl.) No(s).5058 of 2019)

Criminal Appeal No(s) 1473 of 2019  (Arising out of SLP (Crl.) No(s).5368 of 2019)

Criminal Appeal No(s) 1475 of 2019  (Arising out of SLP (Crl.) No(s).5268 of 2019)

Criminal Appeal No(s).945 of 2019

Civil Appeal No(s) 7560­7561 of 2019  (Arising out of SLP (C) No(s).13722­13723 of 2019)

Criminal Appeal No(s) 1476 of 2019  (Arising out of SLP (Crl.) No(s).5346 of 2019)

Criminal Appeal No(s) 1477 of 2019  (Arising out of SLP (Crl.) No(s).5351 of 2019)

J U D G M E N T

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A.M. Khanwilkar, J.

Delay condoned. Leave granted in Special Leave Petitions.  

2. The seminal question involved in these appeals is: whether

the Chief Judicial Magistrate (for short, “CJM”) is competent to

process the request of the secured creditor to take possession of

the secured  asset  under  Section  14  of the  Securitisation  and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (for short, “2002 Act”)? There are conflicting

views of different High Courts on this question. The High Courts

of Bombay, Calcutta, Madras, Madhya Pradesh and Uttarakhand

have interpreted the said provision to mean that only the Chief

Metropolitan Magistrate (for short, “CMM”) in metropolitan areas

and the District Magistrate (for short, “DM”) in non­metropolitan

areas  are  competent to  deal  with such  request.  On  the  other

hand, the High Courts of Kerala, Karnataka, Allahabad and

Andhra Pradesh have taken a contrary view of the same

provision, to mean that it does not debar or preclude the CJM in

the non­metropolitan areas to exercise power under Section 14 of

the 2002 Act.

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 3. The earliest decision is of the Division Bench of the High

Court of Kerala at Ernakulam in Muhammed Ashraf and Anr.

Vs.  Union of  India  (UOI)  and Others1.  The Court  noted that

Section 14 of the 2002 Act expressly refers to CMM in relation to

metropolitan areas and DM for non­metropolitan areas. It then

went on to observe that as the powers and functions of CJM in

non­metropolitan areas and CMM in metropolitan areas are one

and the same (with only difference that CMM exercises powers in

metropolitan areas and CJM in non­metropolitan areas); and the

expression CJM and CMM are interchangeably used namely, one

is  synonymous  for the  other  depending on the  area under  its

jurisdiction, by interpretative process, it concluded that in non­

metropolitan areas, apart from DM, the CJM is also competent to

exercise powers under Section 14 of the 2002 Act. This decision

was carried in appeal before this Court being SLP (C) No.1671 of

2009 which,  however, came  to  be  dismissed  on 2nd  February,

2009 as no ground to interfere with the impugned judgment was

made out.    

1. AIR (2009) Ker. 14

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4. Soon thereafter, another Division Bench of the High of

Kerala in Radhakrishnan, V.N. Vs. State of Kerala and Anr.2,

reiterated the view taken in  Muhammed  Ashraf  (supra) and

declined to refer the matter to a full bench for reconsideration. 5. However, around the same time, the High Court of Bombay

(Aurangabad Bench) in  IndusInd Bank Ltd., (formerly known

as Ashok Leyland Finance Ltd.) through its Legal Executive,

Ravindrakumar Prakash Bhargodev Vs. The State of

Maharashtra through Police Station3, had taken a

diametrically  opposite  view. It  had held  that it is  not  open to

substitute the word, “CMM” for “CJM”. For, there is no indication

in the 2002 Act that the legislature had intended to empower the

CJM outside the metropolitan areas, although the judicial officer

(CMM) was entrusted with the power to deal with such request in

the metropolitan areas. Again in  Arjun Urban Co­operative

Bank Ltd., Solapur Vs. Chief Judicial Magistrate, Solapur

and Ors.4, another Division Bench of the High Court of Bombay

opined that Section 14 of the 2002 Act,  in no univocal terms,

2 MANU/KE/0677/2008 (Cr. M.C. No.4369 of 2008 dated 20.11.2008) 3 2008 (110) BOM LR 2880 (decided on 22.04.2008) 4 2009 (5) Mh. L.J. 380

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constricts the exercise of powers only by the CMM or DM, as the

case may be.  

6. However, in 2013, the High Court of Karnataka in  Kaveri

Marketing  Vs.  The Saraswathi  Co­op.  Bank Ltd.5  took the

same view as taken by the High Court of Kerala that the CJM can

also exercise powers under Section 14 of the 2002 Act. But the

Single Judge of the High Court of  Calcutta  in  Dinesh Kumar

Agarwal Vs. State of West Bengal6  and the full bench of

Madras High Court in  K. Arockiyaraj Vs. The Chief Judicial

Magistrate,  Srivilliputhur  Virudhunagar  District  and  The

Housing Development Finance Corporation Limited7  took a

different view as taken by the High Court of Bombay and held

that the CMM or DM, as the case may be, alone can exercise

powers under Section 14 of the 2002 Act. Later, the High Court

of Madras in T.C. Ramadoss and Ors. Vs. The Chief Manager

& Authorised Officer State Bank of India and Ors.8, the High

Court of Madhya Pradesh in  Shyam Sunder Rohra Vs.

5 111 (2013) BC 582 6 2013 (1) CHN 671  7 AIR (2013) Mad. 206 8 AIR (2015) Mad. 67

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IndusInd Bank9, the High Court of Uttarakhand at Nainital in

Deepak Aggarwal Vs. State of Uttarakhand and Others10 and

the  Division  Bench of the  High  Court of  Calcutta in  Andhra

Bank and Ors. Vs. Sri Dinesh Kumar Agarwal and Ors.11 also

held that CMM or DM, as the case may be, alone can exercise

power under Section 14 of the 2002 Act.  

7. Whereas, the High Court of Judicature at Hyderabad for the

State of Telangana and the State of Andhra Pradesh in M/s T.R.

Jewellery and Another Vs. State Bank of India and

Another12 and the High Court of Allahabad in Abhishek Mishra

Vs. State of U.P. and Others.13, by interpretative process opined

that even the CJM was competent to exercise powers under

Section 14 of the 2002 Act.

8. The borrowers or the persons claiming through borrowers,

would contend that literal interpretation  of  Section  14 of the

2002 Act must be preferred. In which case, the secured creditor

can seek assistance “only” of CMM in metropolitan areas and DM

9 AIR (2017) M.P. 36 10 MANU/UC/0012/2012 11 (2013) 4 CHN 95 12 AIR (2016) A.P. 125 (FB) 13 AIR (2016) All. 210

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in non­metropolitan areas, for the purpose of taking over

possession of the secured asset or property (instead of resorting

to recovery of property by other means). As the provision is

univocal, it cannot be interpreted in any other manner. To do so

would entail in doing violence to the legislative intent. There is

presumption that Parliament had complete knowledge of the

existing laws and was conscious of the distinction or similarity

between the scope of powers to be exercised by the CMM, DM

and CJM, as the case may be, in terms of the provision of Cr.P.C.

and other laws. Despite such awareness, the parliament

consciously chose to identify clearly, the  authority  which can

entertain the application(s) of the secured creditor under Section

14 of the 2002 Act. In that sense, the provision is in the nature of

defining the authority  persona designata, namely CMM and DM

for the concerned area.  

9. If so, contends the learned counsel, it is not open for the

Court to take recourse of interpretative process to include

another  authority such  as  CJM merely  because the functions

discharged by the CJM and CMM under the Cr.P.C. and other

laws are similar. There is no room for invoking the doctrine of

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Casus Omissus in light of the unambiguous provision in the form

of Section 14 of the 2002 Act. Thus, the similarity of functions

discharged by the CMM and CJM under the Cr.P.C. would be of

no avail. Rather, the Court must follow the maxim “cum inverbis

nulla ambiguitas est, non debet admitti voluntatis quaestio”  and

prefer the plain language of the statute. To demonstrate the

distinction between the hierarchy of the judicial officers, reliance

has been placed on a chart which clearly distinguishes them on

the basis of their functions as non­Judicial Magistrate and

Judicial Magistrate in the concerned area. The office of DM

essentially discharges executive functions and comes within the

non­Judicial Magistrate category. On the other hand, the office of

CMM or CJM would involve both executive and judicial functions.

This  distinction is crucial and it  must  be  presumed that the

Parliament was conscious about this distinction. It is also urged

that the Parliament in various Acts, including the Sick Industrial

Companies (Special Provision) Act, 1985 – Section 29, Banking

Regulation Act,  1949 –  Section 45S, Industrial  Reconstruction

Bank of India, 1984 – Section 51, National Housing Bank Act,

1987 – Section 36­H, Companies Act, 1956 – Section 10FP,

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Companies Act, 2013 – Section 429 and Small Industries

Development Bank of India Act, 1989 ­ Section 39, have enacted

similar provisions empowering CMM/DM, for seeking assistance

to take possession of the property sold or leased.  

10. It is  urged that taking  any  other  view would require re­

writing of Section 14 of the 2002 Act and in the process doing

violence to the legislative  intent.  That must be eschewed. It is

urged that in contradistinction to the expression used in Section

14 “CMM” and “DM”, Section 30 of the same Act (2002 Act) refers

to the authority as “Metropolitan Magistrate” or a “Judicial

Magistrate”, as the case may be for taking cognizance of offences

punishable under the Act.  

11. To buttress  the  above submissions,  reliance  is  placed on

Shankarlal Aggarwal and Ors. Vs. Shankarlal Poddar and

Ors.14,   Municipal Corporation of Delhi Vs. Shiv Shanker15,

Ratan Lal Adukia Vs. Union of India16,  Kishorebhai

Khamanchand  Goyal  Vs. State of  Gujarat  and  Another17,

M/s. Unique Butyle Tube Industries Pvt. Ltd. Vs. U.P.

14 AIR (1965) SC 507 15 (1971) 1 SCC 442 16 (1989) 3 SCC 537 17 (2003) 12 SCC 274

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Financial Corporation and Ors.18,  Delhi Financial  Corpn.

and Another Vs. Rajiv Anand and Others19,  A.N. Roy,

Commissioner of Police and Another Vs. Suresh Sham

Singh20,  Standard Chartered Bank Vs. V. Noble Kumar and

Others21,  Harshad  Govardhan  Sondagar  Vs. International

Assets Reconstruction Company Limited and Others22, Shree

Bhagwati  Steel  Rolling Mills  Vs.  Commissioner of  Central

Excise  and  Another.23,  Authorized  Officer, State  Bank  of

Travancore and Others. Vs. Mathew K.C.24, Commissioner of

Customs (Import),  Mumbai  Vs.  Dilip  Kumar  and  Company

and Others25.  

12. Per contra, the secured creditors (Banks) and auction

purchasers would commend us with the view taken by the High

Courts of  Kerala, Andhra  Pradesh,  Allahabad  and  Karnataka.

According to them, the process under Section 14 of the 2002 Act

18 AIR (2003) SC 2103 19 (2004) 11 SCC 625 20 (2006) 5 SCC 745 21 (2013) 9 SCC 620 22 (2014) 6 SCC 1 23 (2016) 3 SCC 643 24 (2018) 3 SCC 85 25 (2018) 9 SCC 1

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can be invoked by the secured creditor only for taking possession

of the secured assets. The application is required to be filed by

the secured creditor supported by an affidavit stating due

compliances  of the stipulations  provided therefor.  The inquiry

envisaged under Section 14 of the 2002 Act, to be undertaken by

the CMM or DM, is minimal and basic in nature. It  is only to

satisfy itself about the factual position stated  by the secured

creditor in the concerned application including the appended

affidavit filed therewith. It is not an adjudicatory process

muchless to decide about the rights and liabilities of the

contesting  parties.  The  nature  of inquiry is essentially one  of

exercise of administrative or executive powers. Sub­Section (1A)

enables the DM or CMM to authorise any officer subordinate to

him to take possession.  

13. The  CMM and  CJM are clothed  with  powers as  per the

scheme of Cr.P.C.. The office of CMM and CJM  are

interchangeable and they discharge similar functions in their

respective jurisdictions namely, metropolitan and non­

metropolitan areas, as the case may be.  The recent enunciation

of this Court expounds that the inquiry requires judicious

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approach. Therefore, it could be effectively exercised by CJM in a

non­metropolitan area. There is no express provision in the 2002

Act, so as to disregard the dispensation under the Cr.P.C.,

concerning the exercise of powers by the CMM and CJM

respectively. On the other hand, Section 37 of the 2002 Act

makes it amply clear that the application of provisions of Cr.P.C.

is not completely ruled out. Section 37 of the 2002 Act postulates

that the  application  of other laws in force  would continue to

apply and the provisions of 2002 Act or the Rules made

thereunder  shall  be in  addition thereto  and not in  derogation

thereof.    14. It is urged that the 2002 Act does not define the term

“CMM” or “DM”. Reliance is then placed on Section 2(k) of Cr.P.C.

which defines the expression “metropolitan area” and Section 3 of

Cr.P.C. which defines the expression “CMM” or “DM”. The

adjudicatory process like sifting of evidence, trial etc. is required

to be undertaken only by a Judicial Magistrate. The Executive

Magistrate can exercise only executive powers. Indisputably, the

powers of CJM in non­metropolitan area and CMM in

metropolitan area are equal and those terms are used as

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synonymous.  Additionally, reliance is  placed  on  Section  12  of

Cr.P.C. concerning the Judicial Magistrate and Additional

Judicial Magistrate, Section 14 concerning local jurisdiction,

Section 16 and 17 concerning courts of Metropolitan Magistrate,

CMM and Additional Chief Metropolitan Magistrate respectively.

Section 20 of Cr.P.C. deals with the office of Executive

Magistrates. Relying on the exposition of this Court in All India

Judges’ Association and Others Vs. Union of India and

Others26, it is urged that incontrovertibly the post of CJM and

CMM must be equated and they have to be placed in the same

cadre of Civil Judge (Senior Division). Reliance is also placed on

Standard Chartered Bank (supra), to contend that there is no

difference in the jurisdiction or powers exercisable by the CJM

and CMM, except operating in different territorial area. It is thus

urged that expressions “CMM/DM” in Section 14 be construed as

also including “CJM” in a non­metropolitan area.   15. Reliance is then placed on Sindhi Education Society and

Another  Vs.  Chief  Secretary,  Government  of  NCT of  Delhi

26 (2002) 4 SCC 247

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and Others27,  Rani  Kusum  (Smt.)  Vs.  Kanchan Devi (Smt.)

and Others28  and  Vinay Tyagi Vs. Irshad Ali Alias Deepak

and Others29, to buttress the submission that Section 14 of the

2002 Act must receive a construction which would advance the

cause of justice and legislative object sought to be achieved. A

purposive interpretation of Section 14 as including the office of

CJM  in a  non­metropolitan  area  would further the legislative

intent as it would enable the secured creditor to approach the

CJM to take possession of the secured assets thereat.  16. It is urged that the borrowers or the persons claiming

through borrowers, cannot be heard to make any grievance, if the

application filed  under  Section  14 is dealt  with  by a judicial

mind; and moreso because the nature of inquiry to be

undertaken is circumscribed. In that, it is merely verification of

compliances by the secured creditor. In any case, the aggrieved

borrower  has a statutory remedy  of appeal against the order

passed by the CJM as would be available against the order

passed by CMM/DM. Similarly, all contentious issues available to

the borrowers or the persons claiming through them could be

27 (2010) 8 SCC 49 28 (2005) 6 SCC 705 29 (2013) 5 SCC 762

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raised by them even before the CJM, who would be equally

competent to deal with the same as would be done by the

CMM/DM, as per law. Considering the fact that the CMM and

CJM both discharge similar functions and are treated equivalent

for all purposes in the respective territorial jurisdictions, it is not

a case of application being processed by someone who is inferior

and not competent or qualified to do so.    17. To  buttress the  above submissions reliance is  placed  on

Vishal N. Kalsaria Vs. Bank of India and Others30,  State of

A.P.  Vs.  Polamala Raju  Alias  Rajarao31,  Sri  Nasiruddin Vs.

State  Transport  Appellate  Tribunal32,  Bhudan  Singh  and

Another Vs. Nabi Bux and Another33,  K.P. Varghese Vs.

Income Tax Officer, Ernakulam and Another34,   Atma Ram

Mittal Vs. Ishwar Singh Punia35  and  M/s. Girdhari Lal and

Sons Vs. Balbir Nath Mathur and Others36.  

30 (2016) 3 SCC 762 31 (2000) 7 SCC 75 32 (1975) 2 SCC 671 33 (1969) 2 SCC 481 34 (1981) 4 SCC 173 35 (1988) 4 SCC 284 36 (1986 2 SCC 237

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18. It is also urged that in certain States, the functions of the

DM are  discharged  by the  Deputy  Commissioner  of the  State

such as in the State of Jharkhand. Therefore, the interpretation

put forth by the High Courts that application under Section 14 of

the 2002 Act can also be moved before the CJM in a non­

metropolitan area, would sub­serve the interests of all concerned

and also effectuate the legislative intent of expeditious resolution

of matters under the 2002 Act without intervention of the Court.

Lastly, it is urged that if this Court upholds the view taken by the

concerned High Courts that CJM is not competent to deal with

the  action under  Section 14 of the  2002 Act, this  Court  may

invoke the  doctrine  of  prospective  overruling  and  save  all the

orders passed by the CJM’s to this end.

19. We have heard Mr. Dhruv Mehta, Mr. Sudhivasudevan, Mr.

Jaideep Gupta and Mr. Jayanth Muthraj, Senior Advocates, Mr.

Kuriakose Varghese, Mr. A. Karthik, Mr. E. Easwaran, Mr. Sajith

P.  Warrier  Mr.  Govind  Manoharan,  Ms.  Nina  Gupta,  Mr.  Roy

Abraham,  Mr.  Philip  K.  Varghse,  Mr.  Rakesh  K.  Sharma,  Mr.

Radha Shyam Jena,  Mr.  Himanshu Munshi,  Mr.  Ram Swarup

Sharma, and Mr. Mudit Sharma, Advocates.   

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20. We deem it apposite to reproduce Section 14 of the 2002

Act. The same reads thus:  

“14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.­(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 assets 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;

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(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 sub­section  (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 sub­section (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

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the secured assets 2[within a period of thirty days from the date of application]:

3[Provided 4[also] 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.]

5[(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 sub­section (1), the  Chief  Metropolitan Magistrate of 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 6[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.

1. Ins. By Act 1 of 2013, sec. 6(a) (w.e.f. 15­1­2013, vide S.O. 171 (E), dated 15­1­2013).  

2. Subs. By Act 44 of 2016, sec. 12(i) (w.e.f. 1­9­2016, vide S.O. 2831(E), dated 1st September, 2016).  

3. Ins.  By Act  44 of  2016,  sec.  12(ii) (w.e.f.  1­9­2016, vide S.O. 2831(E), dated 1st September, 2016).  

4. Corrected by Corrigendum Notification,  published  in the Gazette of India, Extra., Pt.II, Sec. 1, No.56, dated 8th September, 2016.

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5. Ins. By Act 1 of 2013, sec. 6(b) (w.e.f. 15­1­2013, vide S.O. 171(E), dated 15­1­2013).  

6.  Ins. By Act 1 of 2013, sec. 6(c) (w.e.f. 15­1­2013, vide S.O. 171(E), dated 15­1­2013).”

The unamended provision as applicable at the relevant time when

the decision was rendered by the High Court of Kerala in

Muhammed Ashraf  (supra), was somewhat different. Sub­

section (1A)  was  not in vogue.  That  has come  by  way  of an

amendment in 2013. The provision was amended in 2013 and

further amended in 2016, as is reproduced in the extracted

portion hitherto.  

21. The Division Bench of the High Court of Kerala in

Muhammed Ashraf   (supra), after adverting to the unamended

Section 14 of the 2002 Act had opined that the said provision is a

procedural measure whereby the CMM or DM, as the case may

be, is obligated to render assistance to the secured creditor to

take possession of the secured assets or documents.  The said

authority is empowered to take such steps and use such force, as

may be necessary for taking possession of the secured assets and

documents relating thereto. Strikingly, the act of the authority is

protected and its action cannot be questioned in any Court or

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before any authority in terms of Section 34 of the 2002 Act. It

also noted that a trial or adjudication of dispute by the authority

is not contemplated under this Section.  However, the limited

inquiry to be undertaken is whether secured property is

identifiable and whether 60 days’ notice was issued under

Section 13(2) enabling the secured creditor to resort to Section

13(4) and take possession of the secured assets. The Court

unerringly opined that Section 14 of the 2002 Act is only for the

purpose of executing the power and assisting the secured creditor

to take possession of the secured assets. The borrower or person

affected by such action has a right of judicial review before the

Writ Court as ordained by this Court in Mardia Chemicals Ltd.

and Others v. Union of India and Others37. The Division Bench

then noted that the 2002 Act is a self­contained code, including

the powers of the Tribunal to declare any of the measures taken

by the secured creditor invalid and consequential restoration of

possession to persons from whom the possession was taken. The

Court reiterated that in absence of any adjudicatory power vested

in the authority referred to in Section 14 of the 2002 Act, it had

37 (2004) 4 SCC 311 (paragraph Nos.80 and 81)

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no powers to exercise the powers vested in the Tribunal.

Whereas, it can only facilitate the secured creditor in taking

possession of the secured assets  after  verification of the basic

facts regarding the entitlement of the secured creditor to get such

possession.  The  Court then adverted to the exposition  of this

Court in  Transcore Vs. Union of India and Another38, which

had analysed the provisions of the 2002 Act. It then adverted to

the Gujarat High Court decision in  Bank of India Vs. Pankaj

Dilipbhai Hemnani and Others39  and agreed with the dictum

therein  that the  authority  referred  to  under Section 14 of the

2002 Act can only verify whether 60 days’ notice as prescribed

under Section 13(2) was issued or not and whether secured asset

is identifiable. It then noted that after such inquiry the authority

before taking action is obliged to satisfy itself in that regard. At

the same time,  it  cannot enter upon adjudication or trial  of  a

dispute while exercising power under Section 14 of the 2002 Act.

The Parliament has invested power under Section 14 of the 2002

Act, in a senior functionary so as to avoid an arbitrary and high­

handed action at the instance of secured creditor. The Court then

38 (2008) 1 SCC 125(paragraph No.74) 39 AIR 2007 Guj. 201

24

adverted to the decision in  Solaris Systems Pvt. Ltd. and

Another Vs. Oriental Bank of Commerce and Another40, of a

Single Judge of the same High Court, which for the first time had

held that CJM for non­metropolitan areas was competent to deal

with the application under Section 14 of the 2002 Act. The Court

then noticed the definition of metropolitan area in Section 2(k) of

Cr.P.C., Section 3 regarding construction of references which

equates the CJM to that of the CMM whilst exercising jurisdiction

in the concerned areas. Considering the legislative scheme in that

regard, the Court concluded that the powers of the CJM in non­

metropolitan areas and CMM in metropolitan areas, are one and

the same with only difference being that the CMM exercises

powers in metropolitan areas. The Court then analysed the

decision of this Court in  Unique Butyle Tube Industries Pvt.

Ltd.  (supra) and distinguished the same by holding that in the

present case, the question was whether the term CMM in

metropolitan areas will include CJM in non­metropolitan areas.

The Court went on to observe that the legislation must be

understood  in a  reasonable  manner.  For that, it took support

40 I.L.R. 2006 Ker 645

25

from the dictum in  Holmes Vs. Bradfield Rural District

Council41 and also in Sri Nasiruddin (supra) wherein this Court

adopted “just reasonable and sensible” interpretation of the

provision. The Court then noted the dictum of Denning, L.J. in

Seaford Court Estates Ltd. Vs. Asher42 which was quoted with

approval by this Court in  M. Pentiah Vs. Muddala

Veeramallapa43,  Bangalore Water Supply and Sewerage

Board Vs. A. Rajappa and Others44 and NEPC Micon Ltd. Vs.

Magna Leasing Ltd.45  etc.. The Court also adverted to the

enunciation of House of Lords in Inco Europe Ltd. and Ors. Vs.

First  Choice  Distribution (a firm) and  Ors.46  wherein it is

observed that Court can add words in its interpretative process in

suitable  cases  to  give  effect to the purpose  of legislature.  The

Court then noted that in  Padmasundara Rao and Others Vs.

State of Tamil Nadu and Others47, a Constitution Bench of this

Court had held that “a casus omissus cannot be supplied by the

41 1949 (1) All ER 381 (Page 384) 42 (1949) 2 All ER 155, P. 164(CA) 43 (1961) 2 SCR 295 44 (1978) ILLJ 349 SC 45 1999 CriLJ 2883 46 2000 (2) All ER 109 47 (2002) 255ITR 147 (SC)

26

Court except in the case of clear necessity and when reason for it

is found in the four corners of the statute itself…”. Lastly, the

Court adverted to the decision in National Insurance Co. Ltd.

Vs. Laxmi Narain Dhut48 which had considered the dictum in

Reserve Bank of India and Others Vs. Peerless General

Finance and Investment Company Ltd.  and Another49;  and

Kehar Singh and Others Vs. State (Delhi Admn.)50 to hold that

if the statutory provision is open to more than one interpretation,

then the Court must adopt the one which represents the true

intent of the  legislature. However, the function of the Court  is

only to expound and not to legislate. At the same time, the

process of construction combines both literal and purposive

approaches.  Finally, the Court  went on to observe  that in  the

present case there was no  casus omissus.  In that, CJM in

metropolitan areas are designated as CMM and vice versa

mutatis­mutandis by implication and reference by the areas of

jurisdiction both stand on the same footing to denote the

authority depending upon where he is situated. On that basis, it

48 2007 (2) KLT 470 (SC) (paragraph Nos.34 and 35) 49 (1996) 1 SCC 642  50 (1988) 3 SCC 609

27

concluded that  in non­metropolitan areas,  apart  from the DM,

the powers can be exercised by the CJM also to render assistance

to the secured creditor in taking possession of the secured

assets; and in doing so, the Magistrate can appoint a

Commissioner for identification of the secured assets and taking

possession thereof and if there is any resistance, ask for police

assistance and take any effective steps to have possession of the

secured assets taken over.  

22. The full Bench of the High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra

Pradesh in  M/s T.R. Jewellery  (supra) also analysed the

provisions of the 2002 Act and noted that the object of the Act is

to achieve speedier recovery of the dues declared as Non­

Performing Assets (NPAs), without the intervention of the

Tribunals or the  Courts and for quick resolution of disputes

arising out of the action taken for recovery of such dues apart

from making better availability of capital liquidity and resources

to help in the growth of economy and welfare of the people. As

regards to Section 14 of the Act, it noted that the purpose

28

underlying is to assist the secured creditor for taking possession

or control of the secured assets by requesting the authority

referred to therein. The Court then went on to analyse the

scheme of the Cr.P.C. and noted that the executive powers are to

be exercised by the Executive Magistrate, whereas sifting of

evidence shall be exercisable only by a Judicial Magistrate.

Further, from the scheme of the Cr.P.C., it is clear that the CJM,

CMM and the DM are separately referred to in the Code and High

Court has been empowered to appoint CJM and CMM while the

State Government appoints one of the Executive Magistrate as

DM in every District.  The Court then adverted to the decisions of

different High Courts which have had the occasion to deal with

the question under consideration in reference to Section 14 of the

2002 Act, as to whether the CJM in non­metropolitan areas, is

equally competent to entertain or deal with the application moved

by the secured creditor. It then adverted to Sections 35 and 37 of

the 2002 Act and noted the decision of this Court in  Mathew

Varghese Vs. M. Amritha Kumar and Others51 to conclude that

the application of the provisions of the Cr.P.C., would be in

51 (2014) 5 SCC 610

29

addition to and not in derogation of the provisions of 2002 Act

and the provisions of the Code cannot be excluded from

consideration while dealing with the 2002 Act. It disagreed with

the Full Bench of the Madras High Court that Section 35 of the

2002 Act would override the provisions of Cr.P.C.. After analysing

the other decisions, it went on to hold that in terms of Section 14

of the 2002 Act, the CJM can authorise any officer subordinate to

him to take possession of such assets after examining the

correctness of the assertion made in the affidavit. Thus, it is only

a procedural step without any adjudication of any dispute

whatsoever. The action is therefore, only an administrative order

made  for taking  possession of the  secured assets, if all  other

conditions  are fulfilled.  Having  already  noted that the  powers

exercised by the CMM and DM in terms of Section 14 of the 2002

Act are synonymous to each other and that they are not

adjudicatory in nature, it answered the question under

consideration in the affirmative. The Court then noted that there

was  no  casus  omissus  nor it  was reading something into the

provision which the legislature never intended nor trying to

interpret the provision so as to defeat the intention of the

30

legislature. Whereas, the Court was only resorting to a purposive

interpretation to effectuate the intention  of the legislature for

which the enactment was made. Thus, it concluded that exercise

of power by the CJM in non­metropolitan areas, who exercises

the same powers as that of CMM in metropolitan areas, would

not in any way abrogate or contradict the dispensation predicated

in Section 14 of the 2002 Act. Moreso, it would not cause even a

tittle of prejudice to any of the parties. Whereas, it would ensure

a just process under the aegis of a judicial mind (CJM) in

rendering assistance to the secured creditors to recover

possession of their assets thereby achieving the object for which

the 2002 Act has been enacted.  

23. Similarly, the Karnataka High Court at Bangalore in Kaveri

Marketing  (supra), opined that the expression CMM be

construed as inclusive of CJM for non­metropolitan areas, as the

powers of CJM and CMM are identical. Thus, the High Court of

Karnataka also opined that the CJM in non­metropolitan areas

would be competent to entertain and deal with application under

Section 14 of the 2002 Act.

31

24. Similar view has been taken by the Division Bench of the

High Court of Allahabad in Abhishek Mishra  (supra). It is held

that Section 14 of the 2002 Act is a procedural measure enabling

the secured creditor to take possession of the secured assets by

making application to the authority specified therein. Even the

Allahabad High Court adverted to the scheme of the provisions in

the Cr.P.C. bestowing executive and judicial power in the

concerned authority. Besides, it made reference to the same

decisions as noticed by the High Court of Kerala in Muhammed

Ashraf (supra) and concluded as under:  

“34. Applying the above well settled principles of interpretation of  Statute, the answer to the  issue  is nomenclature 'Chief Metropolitan Magistrate' used by legislature is Section 14 of the Act includes Chief Judicial Magistrate functioning in non­metropolitan area and shall have jurisdiction to entertain an application made under Section 14 of the SARFAESI Act, 2002. In our considered opinion, there is no casus omissus. The interpretation given by us does not amount to reading anything  in  the provision,  which the legislature never intended to, nor the interpretation given by us, in any way, defeats the intention of the Legislature. It is a purposive interpretation to advance the true intention of the legislature for enacting the Act, viz. speedy recovery of bad debts of the banks and financial institutions declared as NPAs. On the contrary, adopting the principles of literal construction in interpretation of

32

the word 'Chief Metropolitan Magistrate' would not only defeat the object and purpose of  legislation but would lead to manifestly anomalous result which could not have been intended by the legislature. As per Lord Reid in the case of Luke Vs. IRC, 1966 AC 557, where to apply words would literally defeat the obvious intention of the legislation and produce a wholly unreasonable result, we must do some violence to the words and so achieve that obvious intention and produce a rational construction.

35. The view taken by us finds support from the Full Bench decision of Andhra Pradesh High Court in the case of T.R. Jewellery & Ors. Vs. State Bank of India & Ors. (supra)  and a Division Bench of  High Court  of Kerala in the case of Muhammed Ashraf, C. Arifa Vs. Union of India, we are unable to agree with contrary view taken by Bombay High Court in the case of Indusind Bank Ltd. Vs. State of Maharashtra and High Court of Madras in K. Arockiyaraj Vs. The Chief Judicial Magistrate, Srivilliputhur & Anr., MANU/TN/1796/2013 : 2013 (4) L.W. 485. The Full Bench of Madras High Court in the case of K. Arockiyaraj  (supra) was of the view that phraseology used in Section 14 of the Act, 2002 should be given its true meaning without taking any assistance from Code of  Criminal  Procedure in  view of  Section  35  of  Act, 2002, which provides  that  provisions of the Act  will override all other laws which includes Code of Criminal Procedure. It was also held that when SARFAESI Act is a complete code, there is no need to take resort to Section 3 of Cr.P.C.

36. With respect to the learned Judges, we have been unable to persuade ourselves to agree to the view taken. The Full Bench failed to take notice of Section 37 of the Act, 2002 which provides that application of other laws  is  not  barred.  The said  section reads as under.

"37. Application of other laws not barred.­ The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of

33

1956), the Securities and Exchange Board of India Act 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force."

37. There can be no manner of doubt that words "any other law for time being in force" used in Section 37 would also include Code of Criminal Procedure within its ambit and the application of provisions of Cr.P.C. cannot be excluded from consideration while dealing with the provisions of Act, 2002. Hence, the view taken by Full Bench of Madras High Court that in view of Section  35 of  Act, 2002, the  provisions  of said  Act would override the provisions of Cr.P.C. and the words 'Chief Metropolitan Magistrate' used in Section 14 should  be given literal interpretation  without taking any aid or assistance of Cr.P.C. does not, to us, appear to be correct.

38. Fort the aforesaid facts and discussions, we are of the considered view that nomenclature 'Chief Metropolitan  Magistrate' used in  Section  14 of Act, 2002 is inclusive of 'Chief Judicial Magistrate' functioning in a non­metropolitan area and shall have jurisdiction to entertain an application made by a secured creditor under Section 14 of Act, 2002.”

25. We shall  now turn to the other decisions taking the view

that only DM in a non­metropolitan area is competent to deal

with the application filed by the secured creditor under Section

14 of the  2002 Act.  The Division Bench of the  High Court  of

Bombay  in  IndusInd Bank Ltd.  (supra) after adverting to the

statement of objects and reasons of the 2002 Act, opined that the

secured creditor is not required to obtain a decree from a

34

competent Court/DRT before being entitled to take steps for the

purpose  of enforcement  of recovery in relation to the  secured

assets. While dealing with the specific issue as to whether, the

CJM is competent to deal with the application filed by the

secured creditor  under Section 14 of the  2002 Act, the Court

went by the plain text of Section 14 of the 2002 Act to hold that

the CJM was not competent to do so; and that only the CMM in

metropolitan areas and DM in non­metropolitan areas is

competent to assist the secured creditor in taking possession of

the secured assets, in terms of the 2002 Act. It noted that the

reference to expression CJM is conspicuously absent in Section

14 of the 2002 Act and, therefore, the legislature did not intend

to entrust the stated function to CJM in a non­metropolitan area,

although  the  same  is entrusted to  CMM,  a judicial  officer, in

metropolitan area.   Yet again, in  Arjun Urban Co­operative

Bank Ltd. (supra), another Division Bench of the High Court of

Bombay reiterated the exposition in IndusInd Bank Ltd. (supra)

after adverting to the dictum in  Trade Well and Another Vs.

Indian Bank and Another52,  Transcore  (supra)  and  Unique

52 (2007) Cri. LJ 2544

35

Butyle Tube Industries Pvt. Ltd.  (supra). It noticed the Kerala

High Court decision in  Muhammed Ashraf  (supra) and agreed

therewith only to the extent that there was no casus omissus in

Section 14 of the 2002 Act ­ as it refers to two distinct

authorities. However, it went on to disagree with the view taken

therein that CJM is also competent to deal with such

applications;  because, in its  view,  when  literal  construction of

Section 14 of the 2002 Act was explicit then there was no need to

supplement any word(s) thereto. For, the interpretation of Section

14 of the 2002, as it stands, does not lead to any absurd results.

It did notice that the authority referred to in Section 14 of the

2002 Act  has  no  power to  adjudicate  upon any rights  of the

parties but can only render assistance to the secured creditor to

recover possession. It opined that nothing prevented the

legislature from adding the words CJM in Section 14 of the 2002

Act. It then went on to advert to the dictum of Lord Denning in

Seaford Court Estates Ltd. (supra) and House of Lords in Inco

Europe Ltd.  (supra) wherein, it was held that a Court can add

words in its interpretative process in suitable cases, if omission

or inadvertence of drafting is noticed to give effect to the purpose

36

of the legislation, but not otherwise. It held that there was no

inadvertence in drafting of Section 14 of the 2002 Act, when it

referred to two distinct authorities, namely, CMM and DM. The

High Court of Bombay thus, adopted the route of literal

interpretation of the provision as it stands.  

26. The next decision is of the High Court of  Uttarakhand at

Nainital  in  Deepak Aggarwal  (supra), which adopted the view

taken  by the  High  Court of  Bombay in  IndusInd  Bank Ltd.

(supra) and concluded that only CMM in metropolitan areas and

DM in non­metropolitan areas would be competent to deal with

the application moved by the secured creditor under Section 14

of the 2002 Act for taking possession of the secured assets.  

27. The Single Judge of High Court of Calcutta in  Dinesh

Kumar Agarwal (supra), while dealing with the question under

consideration relied on his previous decision in  Ronit Nirman

Pvt. Ltd. Vs. State Bank of India and Others53,  wherein he

had agreed with the principle expounded by the High Court of

53 A.S.T. 1337 of 2011 (dated 18th October, 2011)

37

Bombay in IndusInd Bank Ltd.  (supra). The Court opined that

once an authority has been named for the purpose of rendering

assistance, the  Court cannot confer jurisdiction  on  any  other

authority, who has not been named in the statutory provision for

exercising such powers. That would amount to usurping

legislative function. It, thus, disagreed with the view taken by the

High Court of Kerala, which had held to the contrary that the

CJM is equally competent to entertain application  filed by the

secured creditor under Section 14 of the 2002 Act. This decision

of the  Single  Judge  was  carried in  appeal  before the  Division

Bench in  Andhra Bank (supra), which in turn upheld the view

taken by the Single Judge that only CMM in metropolitan areas

and DM in non­metropolitan areas were competent to deal with

the application filed by the secured creditor under Section 14 of

the 2002 Act. The Division Bench disagreed with the view taken

by the High Court of Kerala on the ground that the language of

Section 14 of the 2002 Act was unambiguous and did not

warrant construction to empower the CJM in non­metropolitan

areas.

38

28. The Full Bench of the High Court of Madras in  K.

Arockiyaraj  (supra) adverted to the exposition in  Mardia

Chemicals Ltd.  (supra),  K. R. Chandrasekaran Vs. Union of

India54,  which had considered the objects of enactment in

question. It noted that the 2002 Act is a self­contained code and

after adverting to the relevant provisions observed in paragraph

Nos.15 and 16 of its judgment as under:

“15.  On perusal  of  Sections  13(2),  13(4),  14(1)  & 14(2), it is  evident that the Secured Creditor  can proceed against the Secured Assets, if the borrower makes any default in repayment of secured debts or any installment thereof. Any person aggrieved against the order passed under Section 13(4) of the Act is given a right of Appeal under Section 17 of the Act. The adjudication of the rights of parties will come only if the action of the Secured Creditor is challenged in an Appeal filed under Section 17. A further appeal to the Appellate Tribunal (DRAT) is also provided under Section 18 of the Act.

16.  Section  14, inserted  through  the  Amendment Act No. 1 of 2013, contemplates delegation of power to assist, by the District Magistrate/Chief Metropolitan Magistrate, to any officer subordinate to him, amplifies the intention of the Parliament to treat the power of assistance as an executive function and not as a judicial function. If the power is a judicial function, adjudicatory in nature, there may not be such delegation to any subordinate officer. It is well settled in law that the adjudicating authority cannot delegate his power as it will  run

54 2012 (2) CWC 115

39

contrary to the Principle 'Delegata potestas non potest deligari'.”

It then adverted to  the dictionary clause of the 2002 Act  and

noted that sub­section  2(2) saved in the Indian  Contract  Act

1872; Transfer of Property Act, 1882; the Companies Act, 1956;

the Securities and Exchange Board of India Act, 1992; and which

are not inconsistent with the definition given in the 2002 Act. It

also  noted  that the  authority referred  to in  Section 14 is  not

expected to  undertake  adjudication  of rights  of the  concerned

parties. It then noted Section 34 and 35 of the 2002 Act and went

on to observe as follows:

“20. From the perusal of the above Section 35, it is evident that the provisions of SARFAESI Act, 2002, shall have the effect notwithstanding anything inconsistent therewith contained in any other  law for the time being in force. Thus, the SARFAESI Act will override other laws including the provisions of Crl. P.C. Section 36 of the Act deals with limitation. The limitation question can be raised after passing an order under Section 13(4), if the claim in respect of the financial asset is not made within the period of limitation prescribed under the  Limitation Act. Thus,  the applicability  of  Limitation Act,  1963, is permitted under Section 36, however, as per Section 35, the application of Crl. P.C. is not permitted.”

40

In this  backdrop the Full  Bench examined the decision of the

Division Bench of the same High Court in  Indian  Overseas

Bank Vs.  Sree  Aravindh Steels  Ltd.55,  which  had relied  on

Sections 3, 5 and 8 of the Cr.P.C. concerning the jurisdictions of

CJM, CMM and Additional Chief Metropolitan Magistrate. It then

noticed Section 20 of the Cr.P.C. relating to the Executive

Magistrates and their local jurisdictions as specified therein.

After analysing these provisions, it went on to observe thus:

“25. On a perusal of the above referred provisions of the Code of Criminal Procedure, Chief Metropolitan Magistrate, Chief Judicial Magistrate and District Magistrate are separately dealt with and only for the purpose of convenience, the High Court is empowered to appoint the Chief Judicial Magistrate to perform the functions akin to Chief Metropolitan Magistrate in Metropolitan areas, which includes judicial functions and administrative functions. When Crl. P.C. itself is dealing with District Magistrates and their jurisdiction, the phraseology used in Section 14(1) should be given its true meaning without any assistance from the Criminal Procedure Code, particularly  in the  light of Section 35 read with Section 2(2) of the SARFAESI Act, 2002.

26. Section 14 of the Act is very clear and unambiguous. It states that the Chief Metropolitan Magistrate or the  District  Magistrate can  assist the Secured Creditors in taking possession of the Secured Assets. It means,  in Metropolitan areas, the Secured Creditors can approach either the Chief Metropolitan Magistrate or the District Magistrate and in Non­ Metropolitan areas, where there is no Chief Metropolitan Magistrate, the Secured Creditors can seek the assistance of the District Magistrate alone, as

55 2009 (1) CTC 341

41

no power is vested on the Chief Judicial Magistrate to give assistance to the Secured Creditors in Non­ Metropolitan areas. There is no omission in the said section as contended by the learned Senior Counsel for the respondents. If there is no authority mentioned to assist the Secured Creditor in Non­Metropolitan areas, the Secured Creditors may be justified in contending that in case of omission, the meaning given in Crl. P.C. can be imported for the effective implementation of the SARFAESI Act. The said situation being not there, the learned Senior Counsel for the Respondent is not justified in contending that wherever there is no Chief Metropolitan Magistrate, the Chief Judicial Magistrate will automatically get the powers to assist the Secured Creditors. If such  an  interpretation  is  accepted, the phraseology used in Section 14 that Chief Metropolitan Magistrate or District Magistrate will have no meaning.”

29. To buttress the above view, the Full Bench agreed with the

decisions of the High Court of Bombay in  IndusInd Bank Ltd.

(supra),  Arjun Urban Co­operative Bank Ltd.  (supra). It  also

relied on the decision of the High Court of Calcutta, which took

similar view as commended to the Full Bench. The Full Bench

then noted the decisions of this  Court  in  Official Liquidator

Uttar Pradesh and Uttarakhand Vs.  Allahabad Bank and

Others56, Sri Nasiruddin (supra), Bhudan Singh and Another

(supra),  K.P. Varghese  (supra),  Atma Ram Mittal  (supra),

Indian Administrative Service (S.C.S.) Association, U.P. and

56 (2013) 4 SCC 381

42

Others Vs. Union of India57, Nasiruddin and Others Vs. Sita

Ram Agarwal58,  High Court of Gujarat and Another Vs.

Gujarat Kishan Mazdoor Panchayat and Others59,  Prakash

Kumar  Alias Prakash Bhutto  Vs. State of Gujarat60  and  New

India Assurance Company Ltd. Vs. Nusli Neville Wadia and

Another61 and also the dictum in  Seaford Court Estates Ltd.

(supra), to conclude as follows:

“35. From the perusal of the above  judgments as well as the statutory provisions contained in Section 14 of the SARFAESI Act, 2002, in its independent existence, we are of the firm view that Section 14 does not contemplate the Secured Creditors to approach the Chief Judicial Magistrates for assistance to secure their assets and the Secured Creditors can approach the Chief Metropolitan Magistrate in Metropolitan areas and in  Non­Metropolitan  areas, the  Secured  Creditors has to approach the District Magistrate, and not the Chief Judicial Magistrate.”

The Full Bench decision has been followed by the Division Bench

of the same High Court in  T.C. Ramadoss  (supra). In this

decision, the Court, additionally, considered the submission

57 (1993) Supp. 1 SCC 730 58 (2003) 2 SCC 577 59 (2003) 4 SCC 712 60 (2005) 2 SCC 409 61 (2008) 3 SCC 279

43

regarding prospective overruling and went on to observe as

follows:

“15. The doctrine of prospective overruling was recognised for the first time in the American jurisprudence in Great Northern Railway Co. Vs Sunburst Oil & Refining Co. 287 U.S. 358 (1932) The said doctrine was for the first time applied in Golak Nath Vs State of Punjab MANU/SC/0029/1967 : AIR 1967  SC 1643  in India  and thereafter referred  and relied on in various decisions, and as such, the doctrine of  prospective overruling  is now an integral part of the Indian Legal System. It is well settled that the overruling decision is a new decision, because it has overruled the settled precedent and it has decided an issue of first impression, where at least one earlier case has not foreshadowed the overruling decision. In the case on  hand, the  Full  Bench in  K.  Arokiyaraj MANU/TN/1796/2013 : 2013 (6) MLJ 641: 2013 (4) LW 485 (supra) has not unsettled the settled position of law. The settled position of law has been interpreted on plain reading of the provisions. Thus, the contention of the learned counsel for the respondent that the decision of the Full Bench would be applicable prospectively does not merit acceptance and it is accordingly rejected. The language of the relevant provision  is  plain and clear  admitting no  confusion, which has been interpreted by the Full Bench in its decision.

16. It is a well settled principle of law that any order passed by an authority without jurisdiction is void and non est and as such, any consequential action taken on the basis of the said order falls to the ground. (See Chief Justice of A.P. Vs L.V.A. Dixitulu MANU/SC/0416/1978 : (1979) 2 SCC 34, A. Jithendernath Vs Jubilee Hills Cooperative House Building Society MANU/SC/8138/2006 : (2006) 10 SCC 96, Ashok Leyland Ltd. Vs State of Tamil Nadu MANU/SC/0020/2004 : (2004) 3 SCC 1, Union of India Vs Pramod Gupta MANU/SC/0549/2005 : (2005) 12 SCC 1, National Institute of Technology Vs Niraj Kumar Singh MANU/SC/0687/2007 :  (2007) 2 SCC 481,  Hasham Abbas  Sayyad  Vs  Usman Abbas

44

Sayyad MANU/SC/5541/2006 : (2007) 2 SCC 355, Deepak Agro Foods Vs State of Rajasthan MANU/SC/7812/2008 : (2008) 7 SCC 748, Chandrabhai K. Bhoir Vs Krishna Arjun Bhoir MANU/SC/8230/2008 : (2009) 2 SCC 315 and Union of India Vs Association of Unified Telecom Service Providers of India MANU/SC/1252/2011 :  (2011) 10 SCC 543

17. Resultantly, we set aside the impugned order dated 23.07.2012 passed by the CJM, reserving liberty to the respondent bank to take recourse to the appropriate jurisdictional forum under the provisions of law.”

30. The Single Judge of the Madras High Court in  Shyam

Sunder Rohra (supra), adopted the view taken by the Full Bench

of High Court of Madras in  K. Arockiyaraj  (supra) and

concluded that Section 14 of the 2002 Act does not permit

secured creditors to approach the CJM for assistance to secure

their assets but they must approach only CMM in Metropolitan

area and DM in non­metropolitan area.  

31. Going by the literal interpretation of Section 14 of the 2002

Act, it does appear that CMM or the DM within whose

jurisdiction the secured asset is situated in, is bestowed with the

authority to entertain the request of the secured creditor for

possession of such secured asset. It also appears that remedy is

45

provided before the designated authority, persona designata. That

is the view taken by the High Courts of Bombay, Calcutta,

Madras, Madhya Pradesh and Uttarakhand. At the same time,

the  High  Courts  of  Kerala,  Karnataka,  Allahabad  and Andhra

Pradesh have taken a  liberal approach and were persuaded to

invoke purposive  interpretation and give expansive meaning to

the expression “CMM”, to include CJM for the non­metropolitan

areas. That has been done in the context of the nature of inquiry

required to be conducted by the concerned authority.  

32. Indisputably, the expressions “CMM”  and “DM”  have  not

been defined in the 2002 Act. That definition can thus, be traced

to the provisions of Cr.P.C.. It is also well established by now that

the 2002 Act, is a self­contained code. Concededly, the nature of

inquiry to be conducted by the designated authorities under the

2002 Act, is spelt out in Section 14 of the 2002 Act. The same is

circumscribed and is limited to matters specified in Clauses (i) to

(ix) of the first proviso in sub­section (1) of Section 14 of the 2002

Act, inserted in 2013. Prior to the insertion of that proviso, it was

always understood that in such inquiry, it is not open to

adjudicate  upon  contentious  pleas regarding the rights  of the

46

parties in any manner. The stated authorities could only do

verification of the genuineness of the plea and upon being

satisfied that it is genuine, the adjudication thereof could then be

left to the Court of competent jurisdiction.  

33. Suffice to observe that an inquiry conducted by the stated

authority  under  Section  14  of the  2002  Act, is a  sui generis

inquiry. In that, majorly it is an administrative or executive

function regarding verification of the affidavit and the relied upon

documents  filed by  the parties.  That inquiry is  required to be

concluded within the stipulated time frame. While undertaking

such an inquiry, as is observed by this Court, the authority must

display  judicious approach, in considering  the relevant  factual

position asserted by the parties. That pre­supposes that it is a

quasi­judicial inquiry though, a non­judicial process. The inquiry

does not result in adjudication of inter se rights of the parties in

respect of the subject property or of the fact that the transaction

is a fraudulent one or otherwise.            

34. Notably, the powers and functions of the CMM and the CJM

are equivalent and similar, in relation to matters specified in the

47

Cr.P.C.. These expressions (CMM and CJM) are interchangeable

and synonymous to each other. Moreover, Section 14 of the 2002

Act does not explicitly  exclude the CJM from dealing with the

request of the secured creditor made thereunder. The power to be

exercised under Section 14 of the  2002 Act  by the  concerned

authority is, by its very nature, non­judicial or State’s coercive

power. Furthermore, the borrower or the persons claiming

through borrower or for that matter likely to be affected by the

proposed action being in possession of the subject property, have

statutory remedy under Section 17 of the 2002 Act and/or

judicial review under Article 226 of the Constitution of India. In

that sense, no prejudice is likely to be caused to the

borrower/lessee; nor is it possible to suggest that they are

rendered remediless in law. At the same time, the secured

creditor who invokes the process under Section 14 of the 2002

Act does not get any advantage muchless added advantage.

Taking totality  of  all these  aspects, there is  nothing  wrong  in

giving expansive meaning to the expression “CMM”, as inclusive

of CJM concerning non­metropolitan area, who is otherwise

competent to discharge administrative as well as judicial

48

functions as  delineated in the  Cr.P.C. on the same terms  as

CMM. That interpretation would make the provision more

meaningful. Such interpretation does not militate against the

legislative intent nor it would be a case of allowing an unworthy

person or authority to undertake inquiry which is limited to

matters specified in Section 14 of the 2002 Act.  

35. Such a view has been taken by the High Court of Kerala as

early as in 2006 and on the same lines, are the decisions of the

other High Courts (Karnataka, Allahabad and Andhra Pradesh).

Be it noted, the challenge to the decision of the High Court of

Kerala was unsuccessful before this Court in SLP (C) No.1671 of

2009, which came to be dismissed on 2nd February, 2009.  

36. Now we may turn to the decision in  Standard Chartered

Bank  (supra). The Court was called upon to consider the

argument that secured creditor before invoking the remedy under

Section 14 of the 2002 Act, must necessarily make an attempt to

take possession  of the secured assets and can take recourse

thereto only if he fails in that effort and encounters resistance to

such an attempt.  While  considering that  argument, the  Court

analysed Sections 13, 14 and 15 of the 2002 Act and opined that

49

Section  14  of the  2002  Act  enables the  secured  creditor  who

desires to seek the assistance of “State’s coercive power” for

obtaining possession of the secured assets to make a request in

writing to the authority designated therein, within whose

jurisdiction the secured asset is located. It also noted that the

authority after receiving such request under Section 14 of  the

2002 Act,  was not  expected  to  do any  further  scrutiny  of the

matter except to verify from the secured creditor whether notice

under Section 13(2) of the Act has already been given or not and

whether the secured asset is located within his jurisdiction.

There is no adjudication of any kind at this stage. The Court also

noticed in paragraph 23 of the reported judgment that after

amendment of Section  14 of the 2002  Act, by inserting first

proviso therein, the designated authority has to satisfy itself only

with regard  to the  matters  mentioned  in clauses  (i) to (ix). In

paragraph 25 of this decision, the Court noted as follows:

“25.  The satisfaction of the Magistrate  contemplated under the second proviso to Section 14(1) necessarily requires the Magistrate to examine the factual correctness of the assertions made in such an affidavit but not the legal niceties of the transaction. It is only after recording of his satisfaction the Magistrate can

50

pass appropriate orders regarding taking of possession of the secured asset.”

The Court then went on to observe in paragraph Nos.33 and 36

of the reported judgment as follows:

“33. We are of the opinion that the High Court clearly erred in recording such a conclusion. The language of Rule 8 does not demand such a construction. On the other hand, a Magistrate whose functioning is structured by the Code of Criminal Procedure is required to act in accordance with the provisions of the said Code unless expressly ordained otherwise by any other law. It is not a case that Cr.P.C. never prescribed for the procedure to be followed by the Magistrate in a case where the Magistrate is required to take possession of property. For example, under Section 83 of the Code, a criminal court is authorised to attach the movable or immovable property or both belonging to a proclaimed offender. Sub­sections (3) and (4) to Section 83 specifically provide that once an order of attachment under sub­section (1) is made by the criminal court, the property which is the subject­ matter  of  such attachment  shall  either  be seized or taken  possession of as the case  may  be  depending upon the fact whether the property is movable or immovable. Both the sub­sections contemplate the appointment of Receiver. It is declared under sub­ section (6) that the powers, duties and liabilities of a Receiver appointed under Section 83 are the same as those of a Receiver appointed under the Code of Civil Procedure, 1908.

XXX XXX XXX

36. Thus, there will be three methods for the secured creditor to take possession of the secured assets: 36.1. (i) The first method would be where the secured creditor gives the requisite notice under Rule 8(1) and where he does not meet with any resistance. In that case, the authorised officer will proceed to take steps as stipulated under Rule 8(2) onwards to take

51

possession and thereafter for sale of the secured assets to realise the amounts that are claimed by the secured creditor.

36.2. (ii) The second situation will arise where the secured creditor meets with resistance from the borrower after the notice under Rule 8(1) is given. In that case he will take recourse to the mechanism provided under Section 14 of the Act viz. making application to the Magistrate. The Magistrate will scrutinise the application as provided  in Section 14, and then if satisfied, appoint an officer subordinate to him as provided under Section 14(1­A) to take possession of the assets and documents. For that purpose the Magistrate may authorise the officer concerned to use such force as may be necessary. After the possession is taken the assets and documents will be forwarded to the secured creditor.

36.3. (iii)  The third  situation  will be one  where the secured creditor approaches the Magistrate concerned directly under Section 14 of  the Act. The Magistrate will thereafter scrutinise the application as provided in Section 14, and then if satisfied, authorise a subordinate officer to take  possession of the  assets and documents and forward them to the secured creditor as under clause 36.2.(ii) above.

36.4. In any of the three situations above,  after  the possession is handed over to the secured creditor, the subsequent specified provisions of Rule 8 concerning the preservation, valuation and sale of the secured assets, and other subsequent rules from the Security Interest (Enforcement) Rules, 2002, shall apply.”

37. Concededly, the Court was not called upon to consider the

specific issue that arises for our consideration, in this batch of

cases. To wit,  whether the CJM is competent to deal  with the

request made by the secured creditor under Section 14 of  the

52

2002 Act in the same manner as can be done by the CMM in

metropolitan areas and DM in non­metropolitan areas.

Nevertheless,  what is significant to  note is that this decision

clearly delineates the nature of inquiry required to be conducted

by the authority referred to in the Section 14 of the 2002 Act. By

its very nature the inquiry, is an administrative or executive

measure and to borrow the phrase used in the said judgment,

“State’s coercive power” ­ for obtaining possession of the secured

assets. It is possible to suggest that as the authority is required

to make inquiry and pass an order, it would partake the colour of

being a quasi­judicial inquiry. In any case, the stated authority is

not empowered to adjudicate on any issue(s) that may be raised

regarding the rights of the concerned parties.  

38. Reliance  was also placed on the exposition in  Harshad

Govardhan Sondagar (supra), wherein the appellants claimed to

be tenants of a mortgaged premises (secured asset); and as

borrowers  (landlord/owner  thereof)  had committed default, the

secured creditor had invoked provisions of 2002 Act to enforce

the secured asset. In that backdrop, application was moved

before the CMM, Mumbai under Section 14 of the 2002 Act to

53

take  possession of the  premises  and handover the  possession

thereof to the secured creditor. While dealing with the challenge

to this action of the secured creditor, the Court noticing Section

14 of the 2002 Act concluded that for the purpose of transferring

the secured asset and for realising the secured asset, the secured

creditor will  require the assistance of the CMM or the DM for

taking of possession of a secured asset from the lessee, where the

lease stands determined by any of the modes mentioned in

Section 111 of the Transfer of Property Act. The Court then went

on to examine the question about the remedies available to the

lessee where he is threatened to be dispossessed by any action

taken by the secured creditor under Section 13 of the 2002 Act.

In that context, the Court noted that Section 34 of the 2002 Act

makes it amply clear that no injunction can be granted by any

Court or other authority in respect of any action taken or to be

take in pursuance of any power conferred by or under the 2002

Act.  Even  this  decision, if  we  may say  so,  deals  with entirely

different issue then the question under consideration in the

present cases.

54

39. It is no more  res integra  that the CJM is equated with the

CMM for the purposes referred to in the Cr.P.C.; and those

expressions are used interchangeably being synonymous of each

other. This Court in  All India Judges’ Association  (supra), in

paragraph 31, opined as under:   

“31. As we have already mentioned, the Shetty Commission had recommended that the Chief Metropolitan Magistrates should be in the cadre of District Judges. In our opinion, this is neither proper nor practical. The appeals from orders passed by the Chief Metropolitan Magistrates under the provisions of the Code of Criminal Procedure are required to be heard by the Additional Sessions Judge or the Sessions Judge. If both the Additional Sessions Judge and the Chief  Metropolitan Magistrate  belong  to the same cadre, it will be paradoxical that any appeal from one officer in the cadre should go to another officer in the same cadre. If they belong to the same cadre, as recommended by the Shetty Commission, then it would be possible that the junior officer would be acting as an Additional Sessions Judge while a senior may be holding the post of the Chief Metropolitan Magistrate. It cannot be that against the orders passed by the senior officer it is the junior officer who hears the  appeal.  There is  no reason  given  by the  Shetty Commission as to why the post of the Chief Metropolitan Magistrate be manned by the District Judge, especially when as far as the posts of the Chief Judicial Magistrates are concerned, whose duties are on a par with those of the Chief Metropolitan Magistrate, the Shetty Commission has recommended, and in our opinion rightly, that they should be filled from amongst Civil Judges (Senior Division). Considering the nature and duties of the Chief Judicial Magistrates and the Chief Metropolitan Magistrates, the  only  difference  being their location, the posts of Chief Judicial Magistrate and Chief Metropolitan Magistrate have to be equated and they

55

have to be placed in the cadre of Civil Judge (Senior Division). We order, accordingly.”

      40. Be it noted that Section 14 of the 2002 Act is not a

provision dealing with the jurisdiction of the Court as such. It is

a remedial measure available to the secured creditor, who

intends to take  assistance  of the  authorised  officer for taking

possession of the secured asset in furtherance of enforcement of

security furnished by the borrower. The authorised officer

essentially exercises administrative or executive functions, to

provide assistance to the secured creditor in terms  of  State’s

coercive power to effectuate the underlying legislative  intent of

speeding the recovery of the outstanding dues receivable by the

secured creditor. At best, the exercise of power by the authorised

officer may partake the colour of quasi­judicial function, which

can be discharged even by the Executive Magistrate. The

authorised officer is not expected to adjudicate the contentious

issues raised by the concerned parties but only verify the

compliances referred to  in the  first  proviso of  Section 14; and

being satisfied in that behalf, proceed to pass an order to

facilitate taking over possession of the secured assets.

56

41. It is well established that no Civil Court can interdict the

action initiated in respect of any matter, which a Debt Recovery

Tribunal or Debt Recovery Appellate Tribunal is empowered by or

under the 2002 Act, to determine and in particular, in respect of

any action taken or to be taken in pursuance of any power

conferred by or  under  the 2002 Act  or  under  the Recovery of

Debts Due to Banks and Financial Institutions Act, 1993. That

has been ordained by Section 34 of the 2002 Act.  

42. The borrowers or the persons claiming through borrowers

had placed emphasis on Section 35 of the 2002 Act. The same

reads thus:

35.  The provisions of this Act to override other laws.­  The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.”

43. The construction of this provision plainly indicates that the

provisions of the Act will override any other law for the time being

in force. The question is: does the provisions of 2002 Act override

the provisions of the Cr. P.C.,  whereunder the functions to be

discharged by the CMM are similar to that of the CJM. Further,

57

the  expressions “CMM and CJM” are  used interchangeably in

Cr.P.C. and are considered as synonymous to each other. Section

14, even if read literally, in no manner denotes that allocation of

jurisdictions and powers to CMM and CJM under the Code of

Criminal Procedure are modified by the 2002 Act. Thus

understood, Section 14 of the 2002 Act, stricto sensu, cannot be

construed as being inconsistent with the provisions of the Code

of  Criminal Procedure or vice­versa in that regard. If so, the

stipulation in Section 35 of the 2002 Act will have no impact on

the expansive construction of Section 14 of the 2002 Act.

Whereas, there is force in the submission canvassed by the

secured creditors (Banks), that Section 37 of the 2002 Act

answers the issue under consideration. The same reads thus:  

“37 ­  Application  of other laws  not  barred.­  The provisions of this  Act  or the  rules  made  thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act 1992 (15 of  1992), the  Recovery  of  Debts  Due to  Banks  and Financial Institutions Act,  1993  (51 of  1993)  or any other law for the time being in force.”

The bare text of this provision predicates that the provisions of

the 2002 Act or the Rules made thereunder shall be in addition

to the stated enactments or “any other law for the time being in

58

force”. Having said that the provisions of the Section 14 of the

2002 Act are in no way inconsistent with the provisions of Code

of Criminal Procedure, it must then follow that the provisions of

the 2002 Act are  in addition to,  and not in derogation of the

Code.

44. Suffice it to observe that keeping in mind the subject and

object  of the  2002 Act  and  the legislative intent  and  purpose

underlying Section 14 of the 2002 Act, contextual and purposive

construction of  the said provision would  further the  legislative

intent. In that, the power conferred on the authorised officer in

Section 14 of the 2002 Act is circumscribed and is only in the

nature of  exercise of  State’s  coercive power  to  facilitate  taking

over possession of the secured assets.  

45. It  would  be  apposite to  now advert to  Section  17  of the

General Clauses Act, 1897. The same reads thus:  

“17 ­ Substitution of functionaries.­(1) In any [Central Act] or Regulation made after the commencement of  this Act,  it  shall  be sufficient, for the purpose of  indicating the application of a law to every person or number of persons for the time being executing  the  functions of  an office, to  mention  the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.

59

(2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations  made  on or  after the fourteenth day  of January, 1887.”

This Court in  Janardhan Vs. State of Maharashtra62  was

called upon to examine somewhat similar challenge. In that case,

the challenge was to the search warrant issued by the Assistant

Commissioner of Police in respect of offences punishable under

Section 6 of the Bombay Prevention of Gambling Act, 1887. The

Court repelled that challenge  by relying  on  Section  17  of the

Bombay  General  Clauses  Act, 1886,  which is  pari materia  to

Section 17 of the General Clauses Act, 1897. The Court opined

that though Section 6 of the Gambling Act specified the office of

Commissioner of Police as the authorised officer, however,

considering the sweep of Section 2(6) of the Bombay Police Act,

1951,  which mentions that the term “Commissioner  of  Police”

would include an Assistant Commissioner, went on to hold that

the search warrant  issued by the Assistant Commissioner was

valid. The Court, while dealing with the said challenge observed

as follows:

62 (1978) 2 SCC 465

60

“8.  Analysing this definition it would appear that any official  title  of  the officer mentioned  in any Act made after the General Clauses Act would deem by fiction of law to include any such official title referred to in any Act passed after the General Clauses Act.

9. Furthermore, not only the official title but even the functions executed by the said officer  would also be deemed to have been exercised by the officer designated in the subsequent Act. The combined effect, therefore, of Section 6 of the Gambling Act and Section 17(1) of the General Clauses Act would be that the term “Commissioner of Police” would include all officers who are executing or performing the functions of the Commissioner  of  Police  as  defined  or  authorised under the latter  Act, namely, the Police  Act.  It would thus be seen that sub­section (6) of Section 2 of the Police Act clearly mentions that the term “Commissioner of Police” would include an Assistant Commissioner. Thus sub­section (6) runs thus:

“2. In  this  Act,  unless there  is  anything repugnant in the subject or context:

* * * (6) … A Commissioner of Police including an  Additional Commissioner of Police, a Deputy Inspector General of Police (including the Director  of  Police  Wireless and Deputy Inspector General of Police appointed under Section  8­A), a Deputy Commissioner of Police and Assistant Commissioner of Police...”

Section 11 of the Police Act runs thus:

“11. (1) The State Government may appoint for any area for which a Commissioner of Police has been appointed under Section 7 such number of Assistant Commissioners of Police as it may think expedient.

61

(2) An Assistant Commissioner appointed under sub­section (1) shall exercise such powers and perform such duties and functions as can be exercised or performed under the provisions of this Act or any other law for the time being in force or as are assigned to him by the Commissioner under the general or special orders of the State Government.”

A perusal of Section 11 of the Police Act leads to the inescapable conclusion that an Assistant Commissioner  appointed under  sub­section  (1) is to perform such duties and functions as can be exercised under the Act or any other law for the time being in force,  which undoubtedly includes the Gambling Act which was a law in force at the time when the Police Act was passed. Apart from this the Assistant Commissioner could also perform those functions which could be assigned to him by the Commissioner under the general or special orders of the State Government. The provision for assignment of powers by the Government to the Commissioner are contained in Section 10(2) of the Police Act which runs thus:

“10. (2) Every such Deputy Commissioner shall, under the orders of the Commissioner,  exercise  and perform any of the powers, functions and duties of the Commissioner to be exercised or performed by him under the provisions of this Act or any other law for the time being in force in accordance with the general or special orders of the State Government made in this behalf.”

10. The High Court has found as a fact that there was a notification by the State Government dated March 10, 1967 by which all the Assistant Commissioners of Police including that of Nagpur were conferred powers and functions of the Commissioner of Police. Thus, in the instant case at the time  when the offence  was committed two things had happened: (1) that in Nagpur where the offence had taken place there was a

62

Commissioner of Police, and (2) that the Commissioner of Police had been conferred the power by the Government notification to assign his functions, powers and duties to the Assistant Commissioner.  In these circumstances, therefore, we do not find any difficulty in accepting the contention of the respondent that having regard to the combined reading of the provisions of Section 17 of the General Clauses Act and the Police Act the term “Commissioner of Police” appearing in Section 6 of the Gambling Act would include even an Assistant Commissioner who was legally and validly assigned the powers, functions and duties of the Commissioner of Police by the State Government under Section 10(2) of the Police Act.  As the General Clauses Act was a statute which was passed before the Gambling Act came into force, Section 17 of the General  Clauses  Act  could  be  called  into aid  to interpret the scope and ambit of the term “Commissioner of Police” as used in Section 6 of the Gambling Act.

11. Learned counsel for the appellant, however, submitted that the power of assignment of functions by the Government given to the Commissioner of police or the Assistant Commissioner could be exercised  only in respect of  matters covered  by the Police Act and not beyond that. I am however unable to agree with this contention which completely overlooks the avowed object of Section 17 of the General Clauses Act which has been passed to resolve such anomalies and it is not possible to construe the provisions of the Police  Act in complete isolation by ignoring the provisions of the General Clauses Act which undoubtedly apply to the facts and circumstances of the present case. For these reasons, therefore, the second contention put forward by  the appellant also fails.”

(emphasis supplied)

In the concurring judgment, additionally, the Court observed

thus:

63

“19. It remains for consideration whether the Assistant Commissioner of Police could be said to be executing the functions of the Commissioner of Police under Section 6(1) of the Act at the time when he issued the special warrant. Reference in this connection may be made to Section 11(2) of the Bombay Police Act, 1951, which provides as follows:

“11. (2) An Assistant Commissioner appointed under sub­section (1) shall exercise such powers and perform  such duties and functions as can be exercised or performed under the provisions of this Act or any other law for the time being in force or as are assigned to him by the Commissioner under the general or special orders of the State Government.”

It was therefore permissible for the Assistant Commissioner of Police not only to exercise such powers and perform such duties and functions as he could, in terms, exercise or perform under the provisions of the Bombay Police Act, or any other law for the  time being  in  force,  but  also the duties and functions assigned to him by the Commissioner of Police under the general or special orders of the State Government.  The High Court has taken note in this connection of the State Government Order APO­3463­ C­2896­(III)­(E)­V, dated March 10, 1967, which empowered all  Commissioners  of  Police to  assign  to the Assistant Commissioners of Police working under them any of their  powers,  duties  and  functions not only under the provisions of  the Bombay Police Act, 1951, but also under any other law for the time being in force. The existence of such an order has not in fact been challenged before us. The Assistant Commissioner of Police was therefore the functionary who could, by virtue of Section 17 of the Bombay General  Clauses  Act,  discharge the functions of the Commissioner of Police under Section 6(1) of the Act in the matter of issuing a special warrant  like the one issued in the present case. It is also not disputed that the Commissioner of Police issued Order 2036, dated September 19, 1967, authorising all Assistant Commissioners of Police working under him to issue search  warrants  under  Section  6  of the  Act to  any

64

Police Officer working under them not below the rank of a Sub­Inspector of Police. As has been shown, this was legally permissible, and it is futile to contend that the High Court erred in rejecting the appellant’s contention to the contrary.

46. Applying the principle underlying this decision, it must

follow that substitution of functionaries (CMM as CJM) qua the

administrative and executive or so to say non­judicial functions

discharged by them in light of the provisions of Cr.P.C., would

not be inconsistent with Section 14 of the 2002 Act; nay, it would

be a permissible approach in the matter of interpretation thereof

and would further the legislative intent having regard to the

subject and object of the enactment. That would be a meaningful,

purposive and contextual construction of Section 14 of the 2002

Act, to  include CJM as being competent to assist the secured

creditor to take possession of the secured asset.   

47. Having said this, we need not to dilate on other decisions

pressed into service regarding the approach to be adopted in the

matter of interpretation of statutes.  

48. To sum up, we hold that the CJM is equally competent to

deal with the application moved by the secured creditor under

65

Section 14 of the 2002 Act. We accordingly, uphold and approve

the view taken by the High Courts of Kerala, Karnataka,

Allahabad and Andhra Pradesh and reverse the decisions of the

High Courts of Bombay, Calcutta, Madras, Madhya Pradesh and

Uttarakhand in that regard.  Resultantly, it is  unnecessary to

dilate  on the  argument  of  prospective  overruling  pressed into

service by the secured creditors (Banks).  

49. While parting we must note that Civil Appeal arising from

SLP (C)  No.7121 of 2019 is directed  against an interlocutory

order passed by the High Court in a pending appeal. This appeal

is, therefore,  disposed of  with  liberty to the  parties therein  to

pursue the appeal pending before the High Court on any other

issue(s), if available as per law. That be decided in accordance

with law.

50. All these appeals are disposed of in the above terms with

liberty to the parties to pursue such other remedies as may be

permissible in law with regard to other issues, if any. The same

shall be considered on its own merits, in accordance with law. No

66

order as to costs. Pending applications in the respective appeals

are also disposed of in the above terms.  

     ……………………………..J       (A.M. Khanwilkar)

     ……………………………..J       (Dinesh Maheshwari)

New Delhi; September 23, 2019.

67

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO(S).4665 of 2016

P.M. Kelukutty & Ors.             …..Petitioner(s) Versus

Young Mens Christian  Association & Ors.         …..Respondent(s)

With

SLP (C) No.5109 of 2016 and SLP (C) No.5141 of 2016

O R D E R  

These matters are detagged. List on 27th  September, 2019,

at the  bottom of the  miscellaneous list for  passing  necessary

order(s).  

     ……………………………..J       (A.M. Khanwilkar)

     ……………………………..J       (Dinesh Maheshwari)

New Delhi; September 23, 2019.