Allowed

Au Small Finance Bank Limited v. Star International

DRAT2 Sept 2025MISC APPEAL/25/2025

Case brief

AI extract

What is this about?

This appeal challenged a DRAT order that set aside a CJM’s Section 14 SARFAESI possession order due to alleged nomenclature errors and lack of reflection of borrower representations. The DRAT held the CJM did not apply his mind. The Tribunal found the Tribunal erred in its findings and allowed the appeal.

What did the court decide?

The impugned DRAT order dated 18.02.2025 in S.A. No. 1057 of 2024 is set aside. The underlying IA No. 762 of 2025 is dismissed.

Au Small Finance Bank Limited versus Star International — Specific Performance | DRAT (2025)

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Reportable/Non-Reportable

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Misc. Appeal No.25 of 2025 -DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT

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KOLKATA

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HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA

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CHAIRPERSON

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Misc. Appeal No. 25 of 2025

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(Arising out of I.A. No. 762 of 2025 in SA No. 1057 of 2024 in DRT-3, Kolkata)

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The Authorised Officer, AU Small Finance Bank Limited. 56A, Stephen House, Hemanta Basu Sarani, Dalhousie Branch, Kolkata 700 001.

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AU Small Finance Bank Limited. 56A, Stephen House, Hemanta Basu Sarani, Dalhousie Branch, Kolkata 700 001.

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.…Appellant

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-Versus-

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M/s. Star International, 5^th Floor, Martinburn Building, 1, R.N. Mukherjee Road, OPP. Laibazar Police Head Quarters, Kolkata 700001.

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Mr. Binay Chaudhary, Khaitan Mansion, 4^th Floor, 40 Nimtala Ghat Street, Block-D, near Gyan Bharati School, Police Station Jora Bagan, Post Office- Beadon Street, Kolkata -700006.

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Mrs. Rima Chaudhary, Khaitan Mansion, 4^th floor, 40 Nimtala Ghat Street, Block-D, Near Gyan Bharati School, P.S.-Jora Bagan, P.O.-Beadon Street, Kolkata- 700006.

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Mr. Sant Lal Agarwala, Flat no. 8D. Block C, Ideal Tower, 57, Diamond Harbour Road, OPP. CMRI Khidderpore, Kolkata700023.

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Mr. Hrishikesh Agarwala, Flat no. 8D. Block C, Ideal Tower, 57, Diamond Harbour Road, OPP. CMRI Khidderpore, Kolkata700023.

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Mrs. Veenita Kanoria (alias Ms. Veenita Agarwala), Flat no. 8D. Block C, Ideal Tower, 57, Diamond Harbour Road, OPP. CMRI Khidderpore, Kolkata-700023.

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Mr. Devanand Agarwala, Flat no. 8D. Block C, Ideal Tower, 57,

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata Diamond Harbour Road, OPP. CMRI Khidderpore, P.S. – Ekbalpur, Kolkata-700023.

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….Respondents

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Sri Arvind Didwania, North Spring Complex, 8, M.M. Feeder Road, Kamarhati (Municipality), P.O. Ariadaha, Dist-North 24 Parganas, Kolkata – 700057.

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………Proforma Respondent

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Counsel for Appellants Mr. Pankaj Kumar Mukherjee with Mr. Sayak Ranjan Ganguly and Ms. Chaitali Acharjee

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Counsel for Respondents Mr. Nemani Srinivas with Mr. Sanjib Das and Ms. Moumita Roy, Respondents No. 1 to 7.

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Mr. Lord Chatterjee with Ms. Madhuparna Chakraborty and Ms. Alisha Kar for Respondent No. 8.

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JUDGMENT : 2^nd September, 2025

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THE APPELLATE TRIBUNAL :

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Instant Appeal has been preferred against an order dated 18.02.2025 passed by Learned DRT-3 Kolkata in SA No. 1057 of 2024 (Star International Ltd. & Ors. vs. AU Small Finance Bank Ltd. & Ors.), whereby Learned DRT allowed the I.A. No. 762 of 2025 and directed the Appellant Bank not to take any coercive steps in respect of the secured property without the leave of the Tribunal till the next date of hearing. It was further held that the impugned order dated 21.01.2025 passed by Learned Chief Judicial Magistrate, Alipore suffers from illegalities and irregularities.

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata 2. I have heard the Learned Counsel for the parties and perused the records.

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3. As would appear from the pleadings, the I.A. No. 762 of 2025 was filed in pending S.A. No. 1057 of 2024 challenging the order dated 21.01.2025 passed by Learned CJM Alipore on the ground that it does not fulfill the requirements of Section 14 of the SARFAESI Act, 2002. A further ground is taken that initial order dated 29.11.2024 passed in Miscellaneous case number 398 of 2024 was not passed in the present case. Rather that order was passed in some other case (AU Small Finance Bank versus Partha Pratim Das and others) while the impugned order is passed in continuation of the same order which is illegal per se.

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4. Learned DRT held that the cause title of the Miscellaneous case No. 398 of 2024 is ( AU Small Finance Bank versus M/s Star International Ltd.) while the order dated 29.11.2024 was passed in Miscellaneous case No. 398 of 2024 ( AU Small Finance Bank vs. Partha Pratim Das and others). It is further observed that there is a finding in the impugned order that there is no reflection of representations made by the borrower in the order of the Learned CJM. Accordingly, Learned CJM has not applied his mind in passing the impugned order and the order suffers from material illegalities and infirmities. Accordingly, Learned DRT restrained the Bank from taking any coercive steps in respect of the secured property without the leave of the Tribunal.

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata 5. Learned Counsel for the Appellant would submit that the Learned DRT erred in passing the impugned order. Initial order dated 29.11.2024 was passed in Misc. case No. 398 of 2024 which is the present case wherein the parties are ( AU Small Finance Bank versus M/s Star International) . Due to typographical error in the nomenclature, name of the parties was printed as ( AU Small Finance Bank versus Partha Pratim Das). Impugned order passed by Learned CJM was passed in the instant matter only. It is further submitted that satisfaction regarding nine points affidavit is duly recorded by the Learned CJM. Reply of the representation is also duly recorded although at a later stage in the impugned order of Learned CJM Alipore, an observation is made that no reply was given which is against the records. 6. Per contra, Learned Counsel for the Respondent would submit that the initial order dated 29.11.2024 was passed in a different matter bearing nomenclature of (AU Small Finance Bank versus M/s Partha Pratim Das). Partha Pratim Das was neither a borrower nor a party in the present proceedings. Subsequent order dated 21.01.2025 was passed in continuation of the order dated 29.11.2024 which is illegal per se.

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7. Impugned Order dated 21.01.2025 was passed by the Learned CJM Alipore under Section 14 of the SARFAESI Act, 2002. An application by the secured creditor was filed under Section 14 of the SARFAESI Act, 2002 before the Learned CJM being Misc. case No. 398 of 2024. Application was supported with an affidavit of the authorized officer.

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata

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Learned CJM passed the impugned order dated 21.01.2025 in detail wherein he has recorded his satisfaction regarding the compliance of the nine points as required under Section 14 of the Act. Categorically it was recorded that after service of notice upon the borrowers, objection under Section 13 (3A) on different occasions were filed which were duly considered and responded by the creditor. Learned CJM also recorded his satisfaction about the compliance of the provisions of Section 14 of the SARFAESI Act, 2002 and thereafter, passed the orders under Section 14 of the Act. Relevant portion of the order is as under:

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“The order has stated that no objections have been received from anyone and that the borrowers has failed to repay the outstanding amount in full.

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As all such requirements being fulfilled, it becomes mandatory for the undersigned being the Chief Judicial Magistrate under whom the property is situated to order taking possession of the assets mortgaged with the creditor and the documents related thereto, and forward the same to the secured creditor. As per Section 14 of the SARFAESI Act, the court may take or cause to be taken such steps as use of cause to be used such force as may be necessary.

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Hence based on the above facts and circumstances and upon satisfaction as to the fulfillment of the statutory requirements, the application filed u/s. 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act), which has since been amended vide the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016 is allowed.”

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8. At the very outset, it would be appropriate to quote the provisions of Section 14 of the Act:

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

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(1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured asset is required

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata 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-

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(a) take possession of such asset and documents relating thereto; and

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(b) forward such assets and documents to the secured creditor: Inserted by Act No. 1 of 2013 dated 3.1.2013 w.e.f. 15.1.2013 [PROVIDED that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorized officer of the secured creditor, declaring that-

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(i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application;

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(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 the details of properties referred to in subclause (i) above

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(iv) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount;

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(v) Consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a non-performing asset

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

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

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(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:

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata (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 [within a period of thirty days from the date of application) [PROVIDED [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 6 period but not exceeding in order within such further 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. [(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) secured creditor.] to forward such assets and documents to the (2) For the purpose of securing compliance with the provisions of sub-section (1),the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary.”

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9. It was held by the Hon’ble Apex Court in Kotak Mahindra Bank Limited -Vs- A. Balakrishnan & Another [(2022) 9 SCC 186] and Saregama Indian Limited -vs- Next Radio Limited & Others [(2022) 1 SCC 701] that when the language of a statutory provision is plain and unambiguous, it is not permissible to the Courts to add or subtract word to constitute or write something into it which is not there. It cannot re-write or recast legislation.

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata 10. Now we have to see as to what is the object of the Act as legislated by the Legislature? In R.D. Jain And Company -vs- Capital First Limited & Others [(2023) 1 SCC 675] , Hon’ble Apex Court has held that the under lying purpose of the SARFAESI Act, 2002 is to empower the Financial Institutions in India to have some similar powers enjoyed by their counterpart, namely international banks in other countries. One such feature is to empower the Financial Institutions to take possession of the securities and sell them. It was further held that Section 14 of the SARFAESI Act, 2002 predicates that if the secured creditor intends to take possession of the secured assets, it must approach the Chief Metropolitan Magistrate or the District Magistrate by way of an application in writing and on receipt of such request, the Chief Metropolitan Magistrate or the District Magistrate must move into action in right earnest. After passing of an order thereon, Chief Metropolitan Magistrate or the District Magistrate must proceed to take possession of the secured assets and documents relating thereto for being forwarded to the secured creditor in terms of Section 14 (1) read with Section 14 (2) of the Act. Section 14 (2) of the Act is enabling Section and permits the Chief Metropolitan Magistrate or the District Magistrate to take such steps and use force, as may be, in his own opinion, be necessary.

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata

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11. Role of the District Magistrate is simply to assist the secured creditor in taking over possession of the secured assets. Another argument is advanced that once an order is passed by the District Magistrate he becomes ‘functus officio’. As far as powers of the District Magistrate are concerned, in BalkrishnaRama Tarle Vs- Phoenix ARC Private Limited & Others [(2023) 1 SCC 662] the Hon’ble Apex Court has placed reliance upon its own judgment in R.D. Jain (supra) wherein it was held that:

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“18. Now so far as the powers exercisable by DM and CMM under Section 14 of the SARFAESI Act are concerned, Statement of 12 Objects and Reasons for which the SARFAESI Act has been enacted reads as under:

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The financial sector has been one of the key drivers in India's efforts to achieve success in rapidly developing its economy. While the banking industry in India is progressively complying with the international prudential norms and accounting practices there are certain areas in which the banking and financial sector do not have a level playing field as compared to other participants in the financial markets in the world. There is no legal provision for facilitating securitisation of financial assets of banks and financial institutions. Further, unlike international banks, the banks and financial institutions in India do not have power to take possession of securities and sell them. Our existing legal framework relating to commercial transactions has not kept pace with the changing commercial practices and financial sector reforms. This has resulted in slow pace of recovery of defaulting loans and mounting levels of nonperforming assets of banks and financial institutions. Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms have considered the need for changes in the legal system in respect of these areas. These Committees, inter alia, have suggested enactment of a new legislation for securitisation and empowering banks and financial institutions to take possession of the securities and to sell them without the intervention of the court. Acting on these suggestions, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 was promulgated on 21-6-2002 to regulate securitisation and

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata

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reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. The provisions of the Ordinance would enable banks and financial institutions to realise long-term assets, manage problem of liquidity, asset liability mismatches and improve recovery by exercising powers to take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery or reconstruction.

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19. Thus, the underlying purpose of the SARFAESI Act is to empower the financial institutions in India to have similar powers as enjoyed by their counterparts, namely, international banks in other countries. One such feature is to empower the financial institutions to take possession of securities and sell them. The same has been translated into provisions falling under Chapter III of the SARFAESI Act. Section 13 deals with enforcement of security interest. Sub- section (4) thereof envisages that in the event a default is committed by the borrower in discharging his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the measures provided in sub-section (4). One of the measures is to take possession of the secured assets of the borrower including 13 the right to transfer by way of lease, assignment or sale for realising the secured asset. That, they could do through their "authorised officer" as defined in Rule 2(a) of the Security Interest (Enforcement) Rules, 2002. 20. After taking over possession of the secured assets, further steps to lease, assign or sell the same could also be taken by the secured creditor However, Section 14 of the SARFAESI Act predicates that if the secured Creditor intends to take possession of the secured assets, it must approach the CMM/DM by way of an application in writing, and on receipt of such request, the CMM/DM must move into action in right earnest. After passing an order thereon, he/she (CMM/DM) must proceed to take possession of the secured assets and documents relating thereto for being forwarded to the secured creditor in terms of Section 14(1) read with Section 14(2) of& the SARFAESI Act. As noted earlier, Section 14(2) is an enabling provision and permits the CMM/DM to take such steps and use force, as may, in his opinion, be necessary.

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21. At this stage, it is required to be noted that along with insertion of sub-section (1-A), a proviso has also been inserted in sub-section (1) of Section 14 of the SARFAESI Act whereby the secured creditor is now c required to comply with certain conditions and to disclose that by way of an application accompanied by affidavit duly affirmed by its authorised officer in that regard. Sub-section (1-A) is in the nature of an explanatory provision and it merely restates the implicit power of the CMM/DM in taking services of any officer subordinate to him.

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata

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As observed and held by this Court in NKGSB Coop. Bank, the insertion of sub-section (1-A) is not d to invest a new power for the first time in the CMM/DM as such.

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22. Thus, considering the scheme of the SARFAESI Act, it is explicit and crystal clear that possession of the secured assets can be taken by the secured creditor before confirmation of sale of the secured assets as well as post-confirmation of sale. For taking possession of the secured assets, it e could be done by the "authorised officer" of the Bank as noted in Rule 8 of the Security Interest (Enforcement) Rules, 2002.

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23. However, for taking physical possession of the secured assets in terms of Section 14(1) of the SARFAESI Act, the secured creditor is obliged to approach the CMM/DM by way of a written application requesting for taking possession of the secured assets and documents relating thereto and for being forwarded to it (secured creditor) for further action. The statutory obligation enjoined upon the CMM/DM is to immediately move into action after receipt of a written application under Section 14(1) of the SARFAESI Act from the secured creditor for that purpose. As soon as such an application is received, the CMM/DM is expected to pass an order after verification of compliance of all formalities by the secured 14 creditor 9 referred to in the proviso in Section 14(1) of the SARFAESI Act and after being satisfied in that regard, to take possession of the secured assets and documents relating thereto and to forward the same to the secured creditor at the earliest opportunity.

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24. As mandated by Section 14 of the SARFAESI Act, the CMM/DM has to act within the stipulated time-limit and pass a suitable order for the purpose of taking possession of the secured assets within a period of 30 days from the date of application which can be extended for such further period but not exceeding in the aggregate, sixty days. Thus, the powers exercised by the CMM/DM is a ministerial act. He cannot brook delay. Time is of the essence. This is the spirit of the special enactment.

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25. As observed and held by this Court in NKGSB Coop. Bank, the step taken by the CMM/DM while taking possession of the secured assets and documents relating thereto is a ministerial step. It could be taken by the CMM/DM himself/herself or through any officer subordinate to him/her, including the Advocate Commissioner who is considered as an officer of his/her court. Section 14 does not oblige the CMM/DM to go personally and take possession of the secured assets and documents relating thereto. Thus, we reiterate that the step to be taken by the CMM/DM under Section 14 of the SARFAESI Act, is a ministerial step. While disposing of the application under Section 14 of the SARFAESI Act, no element of quasi- judicial

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata function or application of mind would require. The Magistrate has to adjudicate and decide the correctness of the information given in the application and nothing more. Therefore, Section 14 does not involve an adjudicatory process qua points raised by the borrower against the secured creditor taking possession of secured assets.

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26. Thus, in view of the scheme of the SARFAESI Act, more particularly, Section 14 of the SARFAESI Act and the nature of the powers to be exercised by the learned Chief Metropolitan Magistrate/learned District Magistrate, the High Court in the impugned judgment and order has rightly observed and held that the power vested in the learned Chief Metropolitan Magistrate/learned District Magistrate is not by way of persona designata."

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12. In State Bank of India -vs- State of West Bengal, [2024 SCC OnLine Cal 1464] , Hon’ble Calcutta High Court held that:

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“Section 14 (2) of the Act undoubtedly refers back to Section 14 (1) of the Act and provides that for the purpose of securing compliance with the provisions of sub-section (1) of Section 14 of the Act, the Chief Metropolitan Magistrate or the 15 District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may be in his opinion be necessary.”

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13. In Thahira T.T. & Ors. -Vs- The Senior

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Manager, Federal Bank Ltd. &Anr.,[2014 SCC OnLine Ker 9245], Hon’ble Kerala High Court held that it was open for the Magistrate to take note of the factual circumstances involved in the matter and to pass appropriate orders to ensure that the statutory rights of the Bank is protected.

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14. It appears from the above case laws that order of the District Magistrate should specifically demonstrate that he has applied his mind before passing the order and all the ingredients as required u/s 14 of the Act are duly considered and satisfying himself of the contents

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata of the affidavit filed by the authorized officer he passed the order u/s 14 of the Act. As has been held by the Hon’ble Apex Court in Standard Chartered Bank Vs.

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V. Nobel Kumar & Ors. [(2013) 9 SCC 620] that Nine Points as prescribed u/s 14 of the Act are required to be considered by the District Magistrate, which are duly considered by the District Magistrate while passing the impugned order.

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15. Learned DRT was persuaded by the fact that in the order dated 29.11.2024, cause title is mentioned as ( AU Small Finance Bank versus Partha Pratim Das) but in the order the Miscellaneous case number is mentioned as 398 of 2024. Further, subsequent order also deals with the present case. Mere wrong nomenclature is the result of a typographical error which does not affect the merits of the matter.

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16. Learned DRT also recorded a finding that borrower made the representations which were duly replied by the Bank but the same does not reflect from the impugned order. I am unable to agree with the findings recorded by the Learned DRT. Perusal of the impugned order passed by Learned CJM categorically mentions about the representations made by the borrower as well as the reply given by the secured creditor. Hence, there was no illegality or impropriety in the order of the Learned CJM Alipore.

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17. District Magistrate/ Chief Judicial Magistrate simply performs a ministerial Act. He has no

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata adjudicatory power. He has to simply satisfy himself about the contents of the facts regarding nine points and should also record satisfaction in the order under Section 14 of the SARFAESI Act, 2002. Learned CJM Alipore has recorded the categorical findings about the satisfaction on nine points affidavit filed by the Authorised officer. Learned CJM Alipore acted in accordance with law. Learned DRT committed a manifest error in holding that the order of the Learned CJM Alipore suffers from illegalities and irregularities. 18. On the basis of discussion made above, I am of the considered view that the impugned order suffers from material illegalities and irregularities which is liable to be set aside.

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ORDER

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Appeal is allowed. Impugned order dated 18.02.2025 passed by Learned DRT-3 Kolkata in S.A. No. 1057 of 2024 (M/s Star International Ltd. & Ors. vs AU Small Finance Bank Ltd. & Ors.) is set aside. I.A. No. 762 of 2025 filed in S.A. No. 1057 of 2024 pending before the Learned DRT-III Kolkata stands dismissed.

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No Order as to costs.

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File be consigned to Record Room.

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Copy of the Judgment/ Final Order be uploaded in the Tribunal’s Website.

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Order signed and pronounced by me in the open Court on this the day of 2^nd September, 2025.

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. Misc. Appeal No.25 of 2025-DRAT-Kolkata

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