Bangalore District Court
Selvaraj C P vs Rajendran K on 16 July, 2026
Cri. M.A. No. 3218/2022 1 Order
Filed On 18 10 2022
Registered On 18 10 2022
Decided On 03 11 2022
Duration Y M D
IN THE COURT OF 11TH ADDITIONAL CHIEF JUDICIAL
MAGISTRATE SURAT.
Criminal Misc. Application No. 3218 of 2022
Exhibit-4.
Applicant : YES BANK LIMITED Through Its A.O.
Mr. Biren Dave,
Having its Surat Branch office at : 1st floor,
Orbit Tower, Opp. Krushi Bazar, Sahara
Darwaja, Surat - 395002.
Versus
Opponents : 1. Mrs. Lataben Jayprakash Bhogoj
(Borrower & Mortgagor)
Plot No. 33, Shiv Park Society, Godadara
Naher, Road, Surat-395010.
And Also at:
117, Gujarat Housing Board, Ekta Nagar,
Parvat Gam, Choryasi, Surat - 395010.
And Also at:
F-702, 7th Floor, LIG-29, Suman Siddh, Nr.
Vrundavan Row House, Canal Road,
Dumbhal, Surat-305010.
11th ACJM Surat
Cri. M.A. No. 3218/2022 2 Order
2. Mr. Jayprakash S Bhogoj (Co-
Borrower & Mortgagor)
Plot no. 33, Shiv Park Society, Godadara
Naher, Road, Surat-395010.
And Also at:
117, Gujarat Housing Board, Ekta Nagar,
Parvat Gam, Choryasi, Surat-395010.
And Also at:
F-702, 7th Floor, LIG-29, Suman Siddh, Nr.
Vrundavan Row House, Canal Road,
Dumbhal, Surat-305010.
===================================================
Appearance: Ld. Advocate Mr. M.M. Bhatt for the Applicant.
====================================================
Subject: The Application filed under section-14 of the SARFAESI
Act, 2002
JUDGMENT
1. The present application has been filed by the applicant against
the Opponents under section-14 of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter referred to as SARFAESI Act) Act for
taking possession of secured asset as defined in section-2(zc) of the
SARFAESI Act mentioned in the application and forward it to the
applicant. The concise statement of the applicant’s case is that the
applicant is secured creditor as defined in Section-2(zd) of the
SARFAESI Act and the opponents are borrower as defined under
section-2(f) of the SARFAESI Act. The applicant has been notified as
financial institution for the purpose of the SARFAESI Act. It is further
averred in the application that the applicant has satisfied all the
requirement of section-14 of the SARFAESI Act and the applicant’s
11th ACJM Surat
Cri. M.A. No. 3218/2022 3 Order
authorised officer has submitted his affidavit to that effect. Hence, the
present application.
EVIDENCE OF APPLICANT
2. The applicant has submitted his affidavit along with the
application as is required by the first Proviso to Section-14(1) of the
SARFAESI Act and has submitted following documents in support of
his application.
Serial List of documents No. 1. Copy of the RBI License 2. A copy of board resolution.
3. Copies of Loan Documents like Sanction Letter and
Promissory note
4. A copy of loan agreement
5. A copy of outstanding letter.
6. A copy of the Demand Notice U/s 13(2) of the SARAFESI
Act, 2003 And its compliance and RPAD Receipt and
Paper Publication Two daily News Paper Gujarati and
English
7. A copy of the Symbolic Possession Notice U/s 13(4) of
the SARAFESI Act, 2002 And its compliance and
panchnama of 13(4) Notice Pasting Report, RPAD
Receipt and Paper Publication Two daily News Paper
Gujarati and English.
8. A copy of sale deed No.7748
9. A copy of Valuation report.
Submissions on behalf of the applicant.
3. The Ld. Advocate on behalf of the applicant has argued as per
the averment made in the application.
4. Following points are framed for determination of this case:-
11th ACJM Surat
Cri. M.A. No. 3218/2022 4 OrderISSUES
Sr. No. Points for Determination
1. Whether the applicant is entitled to the relief claimed in
the application?
2. What Order ?
5. My findings for the above issues are as under :-
Sr. No. Finding
1. Affirmative
2. As per final order.
REASONS FOR THE DECISION
6. Before determination of this case, it would be necessary to refer
some of the pronouncements governing the determination of an
application filed under section-14 of the SARFAESI Act, 2002. The
Hon’ble Supreme Court in “Standard Chartered Bank v. V. Noble
Kumar” reported in (2013) 9 SCC 620 has held as under;
21. Under the scheme of Section 14, a secured creditor who
desires to seek the assistance of the State’s coercive power for
obtaining possession of the secured asset is required to make a
request in writing to the Chief Metropolitan Magistrate or District
Magistrate within whose jurisdiction, the secured asset is located
praying that the secured asset and other documents relating thereto
may be taken possession thereof. The language of Section 14
originally enacted purportedly obliged the Magistrate receiving a
request under Section 14 to take possession of the secured asset
11th ACJM Surat
Cri. M.A. No. 3218/2022 5 Order
and documents, if any, related thereto in terms of the request
received by him without any further scrutiny of the matter.
22. However, the Bombay High Court in Trade Well v. Indian Bank
[2007 Cri LJ 2544 (Bom)] opined:
“2. … CMM/DM acting under Section 14 of the NPA Act is not
required to give notice either to the borrower or to the third party.
3. He has to only verify from the bank or financial institution
whether notice under Section 13(2) of the NPA Act is given or not and
whether the secured assets fall within his jurisdiction. There is no
adjudication of any kind at this stage.
4. It is only if the above conditions are not fulfilled that the
CMM/DM can refuse to pass an order under Section 14 of the NPA
Act by recording that the above conditions are not fulfilled. If these
two conditions are fulfilled, he cannot refuse to pass an order under
Section 14.”(emphasis supplied)
The said judgment was followed by the Madras High Court in
Indian Overseas Bank v. Sree Aravindh Steels Ltd. [AIR 2009 Mad
10] Subsequently, Parliament inserted a proviso to Section 14(1)
[ “Provided that any application by the secured creditor shall be
accompanied by an affidavit duly affirmed by the authorised officer of
the secured creditor, declaring that–(i) the aggregate amount of
financial assistance granted and the total claim of the bank as on the
date of filing the application;(ii) the borrower has created security
interest over various properties and that the bank or financial
institution is holding a valid and subsisting security interest over such
properties and the claim of the bank or financial institution is within
the limitation period;(iii) the borrower has created security interest
over various properties giving the details of properties referred to in
sub-clause (ii) above;(iv) the borrower has committed default in11th ACJM Surat
Cri. M.A. No. 3218/2022 6 Orderrepayment 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 non-performing asset;(vi) affirming that the period of
sixty days’ notice as required by the provisions of sub-section (2) of
Section 13, demanding payment of the defaulted financial assistance
has been served on the borrower;(vii) the objection or representation
in reply to the notice received from the borrower has been considered
by the secured creditor and reasons for non-acceptance of such
objection or representation had been communicated to the borrower;
(viii) the borrower has not made any repayment of the financial
assistance in spite of the above notice and the authorised officer is,
therefore, entitled to take possession of the secured assets under the
provisions of sub-section (4) of Section 13 read with Section 14 of the
principal Act;(ix) that the provisions of this Act and the rules made
thereunder had been complied with:Provided further that on receipt of
the affidavit from the authorised officer, the District Magistrate or the
Chief Metropolitan Magistrate, as the case may be, shall after
satisfying the contents of the affidavit pass suitable orders for the
purpose of taking possession of the secured assets: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.”] and also sub-section (1-A) “14. (1-A)
The District Magistrate or the Chief Metropolitan Magistrate may
authorise any officer subordinate to him–(i) to take possession of
such assets and documents relating thereto; and(ii) to forward such
assets and documents to the secured creditor.(2) For the purpose of
securing compliance with the provisions of sub-section (1), the Chief11th ACJM Surat
Cri. M.A. No. 3218/2022 7 OrderMetropolitan Magistrate or the District Magistrate may take or cause
to be taken such steps and use, or cause to be used, such force, as
may, in his opinion, be necessary.(3) No act of the Chief Metropolitan
Magistrate or the District Magistrate 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.”] by Act 1 of 2013.
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 pass appropriate
orders regarding taking of possession of the secured asset.
7. The Hon’ble High Court of Gujarat has in “IDBI Bank Ltd-
through Authorized Signatory Vs. District Magistrate” reported at
2011 SCC OnLine Guj 1280 held as under;
5. So far as the first principal contention of the petitioner is
concerned, the same merits consideration because the Chief
Metropolitan Magistrate and the District Magistrate, under Section 14
of the Securitisation Act are not empowered to decide the question of
legality and propriety of any of the actions taken by the secured
creditor under Section 13(4), which can be assailed under Section 17
of the Securitisation Act by the aggrieved person. Under sub-section
(3) of Section 14, the act of the Chief Metropolitan Magistrate or
District Magistrate done in pursuance of the said section cannot be
called in question in any court or before any authority. From the
aforesaid provisions of law, it is evident that Chief Metropolitan
11th ACJM Surat
Cri. M.A. No. 3218/2022 8 Order
Magistrate or District Magistrate is bound to assist the secured
creditor in taking possession of the secured assets.
6. The Authority who is called upon to act under Section 14 of
the Securitisation Act can only assist, nay, is bound to assist the
secured creditor in taking possession of the secured asset. As the
Chief Metropolitan Magistrate and District Magistrate under Section
14 is not empowered to decide the question of legality and propriety
of any of the actions taken by the secured creditor under Section
13(4), which may be assailed under Section 17 of the Act by the
aggrieved person, under sub-section (3) of Section 14 of the
Securitisation Act, the act of the Chief Metropolitan Magistrate or
District Magistrate done in pursuance of said Section cannot be
called in question in any court or before any authority. It is evident
from the provisions of law that the District Magistrate while bound to
assist the secured creditor in taking possession of the secured assets
and to take the possession of the documents relating thereto and
forward such assets and documents to the secured creditor, he is not
empowered to decide the question of genuinity or propriety of such
documents, including the document signed or agreed between the
borrower and the secured creditor.
8. The Hon’ble Supreme Court has in Indian Bank v. D.
Visalakshi reported in (2019) 20 SCC 47 held as under;
52. 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 non-judicial functions
discharged by them in light of the provisions of the Code of Criminal
Procedure, would not be inconsistent with Section 14 of the 2002 Act;
nay, it would be a permissible approach in the matter of interpretation
11th ACJM Surat
Cri. M.A. No. 3218/2022 9 Order
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.
54. To sum up, we hold that CJM is equally competent to deal
with the application moved by the secured creditor under Section 14
of the 2002 Act.
9. The Hon’ble Bombay High Court in CA. Manisha Mehta and
ors. vs. The Board of Directors of Represented by its Managing
Director of ICICI Bank and ors reported in AIRONLINE 2022 BOM
1846 held as under;
8. Pertinently, section 14 of the SARFAESI Act was
amended twice, once in 2013 and then again in 2016. If it were the
intention of the legislature to extend opportunity of hearing to a
borrower before the District Magistrate/Chief Metropolitan Magistrate,
as the case may be, it was free to do so. Advisedly, the legislature did
not do so, for, it would have militated against the scheme of the
SARFAESI Act and more 5902.wpl.8418-22 particularly section 13
thereof. It is implicit in the scheme of the SARFAESI Act that natural
justice, only to a limited extent, is available and not beyond what is
expressly provided. There seems to be little merit in the argument
advanced by Mr. Nedumpara and we hold that the language of
section 14 is too clear and unambiguous, and does not admit of
any requirement of complying with natural justice by putting the
borrower on notice while an application thereunder is under
consideration.
11th ACJM Surat Cri. M.A. No. 3218/2022 10 Order
10. The Hon’ble Gujarat High Court in Devani Jagdishbhai
Dahyabhai (Third Party) Appellant VERSUS DISTRICT
MAGISTRATE SURAT Respondents reported in LAWS(GJH)-
2018-12-26 held as under:-
“27. I do not find any merit in the contention that the District
Magistrate should have provided an opportunity of hearing to the writ
applicant in the proceedings under Section 14 of the SARFAESI Act.
The Supreme Court in the case of Harshad Govardhan Sondagar
(supra) and Vishal N. Kalsaria vs. Bank of India [ (2016) 3 SCC 762]
has not laid down the law that the borrower or any aggrieved person
may also be extended an opportunity of hearing in the proceedings
under Section 14 of the SARFAESI Act.”
11. Considering the material produced by the applicant and
perusing the affidavit submitted by the authorised officer of the
applicant, it transpires to this court that the applicant has satisfied the
requirement of section-14 of the SARFAESI Act so as to entitle it to
have assistance of this Court. The secured asset has been situated
withing the jurisdiction of this court. As per the pronouncement of
Hon’ble Supreme Court in Indian Bank Case (supra), the Chief
Judicial Magistrate is also empowered to entertain the application
filed under section-14 of the SARFAESI Act. So, in view of the
aforesaid reasons and discussion, my finding on issue no-1 is in
affirmative. So far as to issue no-2 is concerned, I hereby pass
following final order in the interest of justice;
FINAL ORDER
1. The Application of the applicant is hereby allowed.
11th ACJM Surat Cri. M.A. No. 3218/2022 11 Order
2. I authorize, Mr. Rohitbhai A Parmar (Assistant) of this court
to act as Court Commissioner under Section-14(1-A) of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002.
3. Court Commissioner is directed to take possession of asset and
forward such asset to the secured creditor. The description of such
asset is as under:-
DESCRIPTION OF MORTGAGED PROPERTY/SECURED ASSET:
“ALL The Piece And Parcel Of Flat No.Lig-29/F-702, On The 7th
Floor Admeasuring 41.162 Sq.Mtr., Built Up Area And 35.177 Sq.
Mtr. Carpet Area In The Scheme Known As “SUMAN SIDDHi”
Situated At T. P. Scheme No. 33, (DUMBHAL) Of F.P. No. 63 In
Village:Dumbhal, City Surat, Dist: Surat.
Boundaries:
East: Internal Road, North: Flat No. F-701,
West: Passage And Flat No. F-703, South: Margin.”
If the secured assets is found in closed condition, the Court
Commissioner may take possession of this secured assets by
breaking / opening the lock or may take any other steps he may
think fit.
After taking the possession of the secured assets, Court
Commissioner shall prepare the inventory of any item, Documents
relating to the assets if found in secured Assets and handover the
same to the applicant.
4. Copy of this Order be sent to the concerned Police
Station. The Police Inspector of the concerned police station under
whose Jurisdiction, the aforesaid Secured Assets is situated, shall
provide necessary police Assistance / protection to the Court
11th ACJM Surat
Cri. M.A. No. 3218/2022 12 Order
Commissioner on the date appointed by the Court Commissioner
for taking possession of the secured assets.
5. The Applicant Bank shall complete the necessary
formalities for seeking police protection and also bear the
expenses thereof.
6. The Court Commissioner may take or cause to be taken
such steps and use, or cause to be used such force, as he may, in
his opinion be necessary.
7. Applicant shall bear the expenses incurred in taking
possession of the secured assets and shall provide all necessary
assistance to the court commissioner in taking possession of the
secured assets. Applicant is hereby directed at present to deposit
lump-sum amount of Rs. 17,000/- towards the expenses and
remuneration of court commissioner, within One Month from the
date of Order. On depositing the above said amount in the court,
the Court Commissioner is directed to complete the said
procedure within 90 days or within the time limit extended by the
court and submit the compliance report of completion of
proceedings.
The court commissioner shall carry out the said
proceedings on public holidays or except court working hours.
Signed and Pronounced in Open Court on 03/11/2022.
Date : 03-11-2022 Mr. A. K Gohil
th
Place : Surat. 11 Additional Chief Judicial
Magistrate, Surat.
ID CODE GJ00951
11th ACJM Surat
