Facts of the Case
The petitioner approached the High Court of Kerala
after being aggrieved by the failure of the Debts Recovery Tribunal-II,
Ernakulam, to number and take up his Securitisation Application filed under
Section 17 of the SARFAESI Act, 2002.
The Registry of the Tribunal took the view that the
petitioner had not produced the “relevant documents including the order of
Chief Judicial Magistrate Court, Kollam through which the Advocate Commissioner
was appointed to take physical possession of the property in question.”
The petitioner claimed to be a bona fide tenant in
the property and sought protection against eviction otherwise than through due
process of law. His grievance was specifically connected with the proposed
taking of physical possession of the property.
The petitioner’s case was that he was not
challenging every proceeding initiated under the SARFAESI Act. His challenge
was confined to the taking of physical possession. According to him, for such a
challenge, the notice issued by the Advocate Commissioner appointed by the
Chief Judicial Magistrate Court, Kollam, was sufficient and production of the
order appointing the Advocate Commissioner was not necessary for registration
of the Securitisation Application.
The petitioner also stated that a chamber appeal
had been filed before the Presiding Officer of the Debts Recovery Tribunal-II,
Ernakulam, but the same was not entertained.
Issues
Involved
The principal issues before the High Court were:
- Whether a Securitisation Application under Section 17 of the
SARFAESI Act could be refused registration or numbering merely because the
applicant had not annexed the Chief Judicial Magistrate’s order appointing
an Advocate Commissioner for taking physical possession.
- Whether such an order was mandatory at the registration stage where
the petitioner’s challenge was confined only to the taking of physical
possession.
- Whether every material or document that may ultimately be relevant
for adjudication must necessarily be annexed to the Securitisation
Application at the initial stage.
- Whether the Registrar of the Debts Recovery Tribunal was justified
in declining to register the petitioner’s Securitisation Application on
the stated documentary objection.
- Whether interference by the High Court was warranted against the
impugned action of the Tribunal Registry.
Petitioner’s
Arguments
The petitioner contended that:
- He was a bona fide tenant and was entitled to protection from
eviction without following due process of law.
- His challenge in the Securitisation Application was limited to the
taking of physical possession of the property.
- He was not challenging all proceedings initiated by the secured
creditor under the SARFAESI Act.
- Since the dispute concerned physical possession, it was unnecessary
to produce documents unrelated to the limited challenge raised by him.
- The notice issued by the Advocate Commissioner appointed by the
Chief Judicial Magistrate Court, Kollam, was sufficient for the purpose of
presenting his grievance before the Tribunal.
- The order of the Chief Judicial Magistrate appointing the Advocate
Commissioner was not indispensable merely for numbering and registering
the Securitisation Application.
- Although a chamber appeal had been filed before the Presiding Officer
of the Debts Recovery Tribunal-II, Ernakulam, the same had not been
entertained.
Respondent
Bank’s Arguments
The respondent bank contended that:
- Ordinarily, in proceedings challenging action taken by a bank under
Section 14 of the SARFAESI Act, the petition filed before the Chief
Judicial Magistrate Court and the final order issued by the Chief Judicial
Magistrate appointing the Advocate Commissioner are also annexed to the
Securitisation Application.
- This ordinary practice may have been the reason why the Registry of
the Tribunal refused to number the petitioner’s application.
- The petitioner had no cause of action to challenge the proceedings
of the Registrar before the High Court under Article 226 of the
Constitution of India.
Court Order
/ Findings
The High Court, after hearing the petitioner and
the respondent bank, held that since the petitioner was challenging only the
taking of physical possession and was not genuinely concerned with the other
proceedings initiated under the SARFAESI Act, it was not necessary for him to
produce the order through which the Advocate Commissioner had been appointed to
take physical possession.
The Court further held that it was for the
petitioner to substantiate his case by producing sufficient materials and
documents before the Debts Recovery Tribunal.
Significantly, the High Court clarified that every
material relevant to the dispute need not necessarily be annexed to the
Securitisation Application itself. The petitioner could produce such materials
as may be necessary in the manner prescribed by the Rules governing the
functioning of the Tribunal.
Accordingly, the High Court:
- Allowed the writ petition;
- Quashed Ext.P9;
- Directed the Registrar of the Debts Recovery Tribunal-II to
register the Securitisation Application filed by the petitioner, taking
into account the findings contained in the judgment; and
- Left the merits of the dispute open for independent adjudication by
the Tribunal in accordance with law.
Important
Clarification
The High Court expressly clarified that it had made
no observations on the merits of the substantive dispute.
Therefore, the judgment should not be understood
as:
- accepting the petitioner’s claim of bona fide tenancy on merits;
- conclusively granting protection against eviction;
- invalidating the SARFAESI proceedings initiated by the bank;
- deciding the legality of the physical-possession action itself; or
- restricting the Debts Recovery Tribunal from independently
examining the dispute in accordance with law.
The ruling was confined to the procedural question
concerning registration of the Securitisation Application.
The key clarification emerging from the judgment is
that a Tribunal Registry should not insist that every potentially relevant
material must necessarily accompany a Securitisation Application at the initial
filing stage. Where the applicant challenges only the taking of physical
possession, the absence of the Chief Judicial Magistrate’s order appointing the
Advocate Commissioner cannot, in the circumstances considered by the Court, by
itself justify refusal to register the application.
At the same time, the applicant remains responsible
for substantiating the case before the Debts Recovery Tribunal by producing
sufficient materials and documents in the manner permitted or prescribed by the
applicable Rules.
Sections
Involved
Section 17
of the SARFAESI Act, 2002
Section 17 was directly involved because the
petitioner had filed a Securitisation Application before the Debts Recovery
Tribunal and complained that the application had not been numbered and taken
up.
Section 14
of the SARFAESI Act, 2002
Section 14 was relevant because the dispute
concerned physical possession and the appointment of an Advocate Commissioner
through proceedings before the Chief Judicial Magistrate Court. The respondent
bank specifically referred to the ordinary practice in proceedings challenging
action taken under Section 14.
Section
13(2) of the SARFAESI Act, 2002
The record of the case included Ext.P10, described
as a notice dated 9 October 2021 issued to the fifth respondent under Section
13(2) of the SARFAESI Act.
Article 226
of the Constitution of India
Article 226 arose because the respondent bank argued that the petitioner had no cause of action to challenge the proceedings of the Registrar before the High Court under its writ jurisdiction.
Link to Download the Order-https://mytaxexpert.co.in/uploads/1783416646_1420compressed.pdf
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