Allowed

Simhadri Civil Technologies v. Union of India

Andhra Pradesh HC11 Apr 2023WP/6249/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition setting aside an order passed in the underspecified Criminal Miscellaneous Petition No.73 of 2022. The court held that an application under Section 14 of the SARFEASI Act filed without the mandatory affidavit containing essential ingredients was contrary to law.

What did the court decide?

The order dated 01.12.2022 in Crl.M.P.No.73 of 2022 is set aside as mandatory pre-requisites under Section 14 of the SARFEASI Act were not fulfilled.

Simhadri Civil Technologies Vs Union of India — Writ and Judicial Review | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU & THE HON’BLE SRI JUSTICE V. SRINIVAS

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Writ Petition No.6249 of 2023

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ORDER: (per Sri Justice D.V.S.S.Somayajulu)

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Heard learned counsel for the writ petitioners and learned counsel for the respondents.

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An essential issue raised by Sri R Siva Sai Swarup, learned counsel for the writ petitioners is that the mandatory requirements of Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFEASI Act”), and in particular the proviso i.e., list of nine (9) items to be mentioned in the affidavit has not been complied with. It is his contention that an application was filed under Section 14 of the SARFEASI Act before the Chief Metropolitan Magistrate, Visakhapatnam without an affidavit as mandated by the proviso of Section 14 of the SARFEASI Act. He also submits that a reading of the order shows that none of the essential ingredients which are required to be mentioned are stated therein. Relying upon order of the Division Bench of this Court in W.P.No.1938 of 2020, he points out that the application filed before the lower Court should be set aside, as the affidavit has not complied with mandatory proviso of Section 14 of the SARFEASI Act.

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The learned counsel relied upon an affidavit which merely is a verified affidavit. The only affidavit filed along with the application is merely an application stating that the deponent has the necessary authority to file the application under Section 14 of SARFEASI Act.

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In reply, the learned Standing Counsel for respondent No.2 argues at length relying upon the Judgment reported in “ Tulsi Rocks Pvt. Ltd. and Ors. Vs. Bank of India, Hyderabad Main Branch and Ors.”¹ of the Division Bench. Learned counsel points out that if there is substantial compliance, this Court should not interfere. This Court however notices that in the said Judgment itself, the Division Bench notices that an affidavit was in fact filed and the Court came to the conclusion that the essential ingredients were mentioned in the affidavit.

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Therefore, this Court is of the opinion that the said Judgment is not applicable to the facts of the present case, where it is asserted categorically that no affidavit as required under Section 14 of the SARFEASI Act has been filed at all.

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In view of the settled law, this Court holds that as the application filed under Section 14 of SARFEASI Act before the

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MANU/TL/0048/2019

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Chief Metropolitan Magistrate, Visakhapatnam is not supported

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by an affidavit which had to contain certain essential ingredients. Hence this Court holds that the orders passed in Crl.M.P.No.73 of 2022 are contrary to law, as mandatory pre-requisites are not fulfilled.

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Hence, this Writ Petition is allowed. There shall be no order as to costs. The order dated 01.12.2022, in Crl.M.P.No.73 of 2022 is set aside. It is made clear that it is always open to the Bank to proceed strictly in accordance with law.

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The miscellaneous petitions pending, if any, shall also stand closed.

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________________________________ JUSTICE D.V.S.S.SOMAYAJULU

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________________________ JUSTICE V. SRINIVAS

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Date: 12.04.2023 ANI

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THE HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU &

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THE HON’BLE SRI JUSTICE V. SRINIVAS