Allowed

Idfc First Bank Ltd. v. Mr. Samir Dey

DRAT12 Mar 2025MISC APPEAL/83/2024

Case brief

AI extract

What is this about?

This appeal challenges a DRAT order that quashed a CJM's direction allowing possession of secured assets. The DRAT held the CJM failed to record 'nine points satisfaction' under Section 14. The DRAT also noted an Advocate was appointed as Commissioner. The Tribunal dispensed with the nine points as a mandatory formality and allowed the appeal, dismissing the quashing order.

What did the court decide?

Impugned order dated 26th June, 2024 passed by DRT in I.A. 1435 of 2024 stands dismissed. Appeal allowed. No order as to costs.

Idfc First Bank Ltd. versus Mr. Samir Dey — Writ and Judicial Review | DRAT (2025)

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Reportable/Non-Reportable

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Misc. Appeal No. 83 of 2024

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(Arising out of I.A. 1435 of 2024 in S.A. 217 of 2023 in DRT-III, Kolkata)

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HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA

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CHAIRPERSON

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IDFC First Bank Limited Registered office at KRM Towers 7^th Floor, No.1 Harrington Road, Chetpet, Chennai-600 031 and branch offices, inter-alia, at Merlin Infinite Building, 16^th Floor, Unit No 1603 & 1604, Block DN, Sector V, Salt Lake, Kolkata - 700 091; Formerly at Apeejay House, Block-B, 15, Park Street, 7^th Floor, P.S. Park Street, Kolkata – 700 016;

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Authorised Officer, IDFC First Bank Limited, Merlin Infinite Building, 16^th Floor, Unit No 1603 & 1604. Block DN, Sector V, Salt Lake, Police Station Electronic Complex. Kolkata – 700 091.

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… Appellants

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-Versus-

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Samir Dey, son of Santi Ranjan Dey, residing at 21/3/5, Behari Lal Paul Street, Baranagar, (M), Baranagar, North 24 Parganas, Kolkata – 700 036, West Bengal.

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Mrs. Kakali Dey, wife of Samir Dey, residing at 21/3/5, Behari Lal Paul Street, Baranagar, (M), Baranagar, North 24 Parganas, Kolkata – 700 036.

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		… Respondents
Counsel for Appellants	…	Mr. Shibnath Banerjee Ms. Pragna Pratiti Sana
Counsel for Respondents	…	Mr. Aurinn Chakraborty Mr. Kaushik Bhadra Ms. Paramita Roy Ms. Renu Mondal Mr. Sumit Biswas
JUDGMENT	:	12^thMarch, 2025

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THE APPELLATE TRIBUNAL :

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1. Instant appeal has arisen against order dated 26^th June, 2024, passed by Learned DRT-III, Kolkata, in I.A. 1435 of 2024 in S.A. 217 of 2023 (Samir Dey & Another -vs- IDFC First Bank Limited) whereby Learned DRT restrained the Appellant Bank from taking any coercive action on the basis of the order of the Learned Chief Judicial

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata Magistrate, Barasat, North 24 Parganas dated 22.8.2023 passed under Section 14 of the SARFAESI Act, 2002 (hereinafter referred to as the ‘Act’).

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2. Heard the Learned Counsel for the parties and perused the record.

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3. As per the pleadings of the parties, Respondents availed Credit Facilities from the Appellant with conditions for EMI for Rs.46,738.00 on 144 installments. Equitable mortgage was created in favour of the Appellant by the Borrowers; necessary documents regarding loan were also executed. Loan was disbursed. Additional supplementary loan for Rs.6,23,473.00 was further sanctioned and necessary documents were executed by the Respondents. There was default in re-payment of the loan amount and the account was classified as N.P.A. in accordance with law. Appellant proceeded under the provisions of SARFAESI Act, 2002. Necessary notices, under Sections 13 (2) and 13 (4) of the Act, were issued which were duly served upon the Respondents but loan amounts were not repaid. An application, under Section 14 of the Act, was filed before the Learned Chief Judicial Magistrate, Barasat which was heard and allowed by the Learned Chief Judicial Magistrate vide order dated 22^nd August, 2023.

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4. Challenging the action of the Appellant, S.A. 217 of 2023 was filed by the Respondents. Pending S.A., I.A. 1435 of 2024 was filed challenging the order passed by the Learned Chief Judicial Magistrate under Section 14 of the Act which was allowed by the Learned DRT

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata by passing the impugned order. It was held that Learned Chief Judicial Magistrate has not complied with the requirements of ‘nine points satisfaction’, as required under Section 14 of the Act. Further Advocate-on-record of the Bank was appointed as Commissioner.

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5. Learned Counsel for Appellant would submit that Learned DRT has erred in passing the impugned order. Learned Chief Judicial Magistrate passed the order under Section 14 of the Act in accordance with law. Learned Chief Judicial Magistrate considered all the nine points, as required to be considered under Section 14 of the Act. It is further submitted that it is the sum and substance of the order of the Learned Chief Judicial Magistrate which should have been considered by the Learned DRT. But Learned DRT without considering the same erred in recording an adverse finding. It is further submitted that Mr. Abhishek Bhattacharjee, Advocate, was not an advocate of the Bank. He was rightly appointed as Commissioner by the Learned Chief Judicial Magistrate. 6. Per contra, Learned Counsel for Respondent vehemently argued that compliance of satisfaction regarding nine points, provided under Section 14 of the Act, is mandatory. Further it was obligatory upon the Learned Chief Judicial Magistrate to record his satisfaction about compliance of the nine points which was not recorded by Learned Chief Judicial Magistrate in the order passed under Section 14 of the Act. It is further submitted that Advocate-on-record of the Secured Creditor should not have

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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been appointed as Commissioner under Section 14 of the Act.

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7. Order passed by the Learned Chief Judicial Magistrate, Barasat, North 24 Parganas dated 22.8.2023 is reproduced as under:

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“ In the Court of the Chief Judicial Magistrate North 24 Parganas, Barasat

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Present: Sri Sandip Kumar (WB 00988) Chief Judicial Magistrate North 24 Parganas, Barasat

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Case No. Misc. 73 of 2023

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IDFC FIRST Bank Limited (formerly known as 100C First). KRM Towers 7^th Floor, No.1 Haringion Road. Chetpet Chennai – 600 031 and branch offices, inter alia, at Apeejay House, Block “B”, 15 Park Street, 7^th Floor, PS-Park Street, Kolkata - 700 016. Represented Through its Authorized Officer Mr. Saikat Ghosh

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-vs-

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1) Samir Dey, 21/3/5, Behari Lal Paul Street Baranagar (M) Baranagar, Kolkata, North 24 Parganas, West Bengal 733036 (Landmark- Bijoy sangha Math)

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2) Kakali Dey, 21/3/5, Behari Lal Paul Street Baranagar (M) Baranagar, Kolkata, North 24 Parganas, West Bengal 733036 (Landmark- Bijoy sangha Math)

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Order dated 22.08.23

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Applicant is present and files a fresh affidavit affirming that no stay order is in operation.

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Record is taken up for passing final order pursuant to hearing the parties.

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It appears that an application has been filed by IDFC FIRST Bank Limited, Apeejay House, Blocke "B", 15, Park Street, 7^th Floor, 15 Park Street, Kolkata 00 016 by its authorised officer Mr. Saikat Ghosh, against the respondents 1) Samir Dey, of 21/3/5, Behari Lal Paul Street Baranagar (M) Baranagar, Kolkata, North 24 Parganas, West Bengal 733 036 (LandmarkBijoy sangha Math)& 2) Kakali Dey of 21/3/5, Behari Lal Paul Street Baranagar (M) Baranagar, Kolkata, North 24 Parganas, West Bengal 733036 (Landmark- Bijoy sangha Math) The gist of the facts is that in course of Trace Advance facility, financial Assistance were given to the respondents at their requests, to the tune of Rs. 34,00,000/- (Rupees thirty four thousand only) through Loan Account no 13672240 and tune of Rs. 6,23,473 (Rupees six lakh twenty three thousand four hundred seventy three) through loan account No. 34033403 accumulating a total of Rs. 40,23,473/(Rupees fourty lakh twenty three

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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thousand four hundred seventy three) after making arrangement between the parties. To secure the said loan, the borrower created equitable mortgage by depositing Tee Deed of the scheduled properties which become secured assets within the meaning of section 2(zd) of the SARIAESI Act. The respondents defaulted in satisfying the loan amount. The said loan became due and unpaid and was classified as Non-Performing Asset (NPA) on 31.08.2022. The applicant Bank issued a notice on the respondents under Section 13(2) of the SARFAESI Act requesting them to meet up the outstanding amount of Rs.34,44,087.34 (Rupees thirty four lakh fourty four thousand eighty seven and thirty four paise) within the stipulated 60 days. The notice was duly served upon the respondents. The applicant also took recourse to section 13(4) of the Act, but without any fruitful result. It is pertinent to mention herein that while taking the loan amount the Respondents deposited the original title deeds of the property being the secured assets in favour of the applicant as per agreement executed between the parties.

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From the documents filed by the applicant it appears that the scheduled property has been given in equitable mortgage by the Respondents before the applicant bank and they took the loan amount from the applicant and thereafter they defaulted and could not repay the loan amount as above.

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The applicant has filed original documents to take physical possession of the secured asset as mentioned in the schedule of the petition to satisfy their dues. From the documents so filed it appears that the lender duly placed the scheduled property in mortgage by furnishing the original title deed. Later an affidavit had been filed by the applicant stating that there is no stay order injunction issued in respect of any proceedings pending before any court of in respect of the property.

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The process under Section 13(4) of the said Act having failed to yield the desired relief, hence considering the fact that the secured assets are situated within the jurisdiction of this court, 1 find it, fit to pass an order as prayed for in favour of the applicant, for taking physical possession of the secured assets under section of the Act as mentioned in the schedule of the application.

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ORDERED

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That the petitioner/applicant, IDFC FIRST Bank Limited, permitted to take physical possession of the immoveable property of the respondent as described in schedule of the application i.e.

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SCHEDULE OF THE PROPERTY

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All that piece and parcel of land measuring is 3 cottahs 22 chittacks (but as per ARC. 3 cottahs 9 chittacks 25 sq.ft with structures), be the same a little more or less, together with a standing thereon, lying and situated at mouza Baranagar and comprised in dag no. 4128/9759 under Khatian no. 3723, J.L. No. 5, R.S. No. 6, Touzi по. 1068/2833 and bearing holding no. 638 (old 571) and premises no. 21/3/5 (old 21/3), Bihari Lal Pal street, under ward No. 28 of the Baranagar Municipality, within P.S. Baranagar, the district of North: 24 Parganas, and bounded as:

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East: House of Mr. Nagen Das

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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West: 2 ft. wide common passage & Land of plot no. 2 of Sadhan Das North: Pond of Mr. Biswanath Das South:House of Mr. Nagen Das

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Learned Advocate Sri Abhishek Bhattacharjee is hereby appointed as officer for taking physical possession of the scheduled property from the respondent's after notice for delivering the same to the authorizes officer of the applicant bank/company/secured credit.

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The Inspector-in-Charge, Baranagar Police Station shall render necessary assistance, if so required, to the id. Advocate on record during the process of delivery of possession of the schedule property as noted above. If the scheduled property is under lock and key, the petitioner may break open the same on certain terms and conditions:-

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1. The padlock/lock and key of the flat/premises/godown/office unit in question as mentioned in the application will be broken in the presence of Authorized Officer of IDFC FIRST Bank Limited, or his competent representatives.

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2 A person in the locality may be present during breaking the padlock.

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3. The bank/Company authority will prepare an inventory list in respect of the articles lying inside the premises compound concerned.

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4. After completion of the inventory, a list will be handed over by the Learned Advocate Sri Abhishek Bhattacharjee to the Opposite Parties and a copy of the list is also to be submitted before this Court.

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The applicant is to bear the cost for providing force by the police as per law.

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Let the original documents be returned.

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To 22.03.24 for compliance report.

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Let a copy of this order be sent to Inspector-in-Charge," Baranagar P/S: Ld. Advocate Sri Abhishek Bhattacharjee and or record and to the authorized Officer of IDFC FIRST Bank Limited being the petitioner/applicant of this case.

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D/c by me, Sd/’ Chief Judicial Magistrate, North 24 Parganas

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Sd/-

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Chief Judicial Magistrate, North 24 Parganas, Barasat”

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8. Section 14 of the Act provides that Secured Creditor shall file an affidavit declaring nine points, which are as under :

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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; (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

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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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 subclause (ii) above;

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(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 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 payment 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 borrower 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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(ix) that the provisions of this Act and the rules made thereunder had been complied with”

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Second proviso of Section 14 of the Act mandates that the District Magistrate shall satisfy himself about the contents of the affidavit and pass a suitable order for the purpose of taking possession of the secured asset. 9. It is a settled proposition of law that authority exercising power conferred upon by the statute has to exercise such power strictly in accordance with the provisions of the statute empowering it to do so. In Standard Chartered Bank -vs- V. Nobel Kumar & Others [(2013) 9 SCC 620] Hon’ble Apex Court has held in Para 24 and 25 as under :

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“24. An analysis of the nine sub-clauses of the proviso which deal with the information that is required to be furnished in the affidavit filed by the secured creditor indicate in substance that “

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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24.1.(i) there was a loan transaction under which a borrower is liable to repay the loan amount with interest,

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24.2 (ii) there is a security interest created in a secured asset belonging to the borrower,

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24.3(iii) that the borrower committed default in the repayment, 24.4(iv) that a notice contemplated u/s 13(2) was in fact issued, 24.5(v) in spite of such a notice the borrower did not make the repayment,

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24.6.(vi) the objections of the borrower had in fact been considered and rejected,

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24.7(vii) the reason for such rejection have been communicated to the borrower, etc.

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the satisfaction of the Magistrate contemplated under the second proviso to Section 14(1) of the Act necessarily requires a 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 its satisfaction, the Magistrate can pass appropriate orders regarding taking of possession of the secured assets.”

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10. It was held by the Hon’ble Apex Court in R.D. Jain and Company Vs. Capital First Limited and others

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[(2023) 1 SCC 675] 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 Objects and Reasons for which the SARFAESI Act has been enacted reads as under:

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Statement of Objects and Reasons

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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 internation 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 securitization 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 non - performing 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

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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changes in the legal system in respect of these areas. These Committees, inter alia, have suggested enactment of a new legislation for securitization 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 21-06-2002 to regulate securitization and 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 reconstructions.” 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 subsection (4). One of the measures is to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset. That, they could do through their “authorized 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. 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 required to comply with certain conditions and to disclose that by way of an application

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata accompanied by affidavit duly affirmed by its authorized officer in that regard.”

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11. Accordingly, Hon’ble Apex Court held that the powers exercisable by the District Magistrate under Section 14 of the Act are ministerial steps and Section 14 of the Act does not involve any adjudication process qua points raised by the borrowers against secured creditor taking possession of the secured assets. It is further held that the District Magistrate is not required to adjudicate the dispute between the borrower and the secured creditor/or between any of the third party and the secured creditor with respect to the secured assets and the aggrieved party be relegated to raise objections in the proceedings under Section 17 of the SARFAESI Act before the DRT.

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12. In Noble Kumar (supra) it was held that the satisfaction of the Magistrate contemplated under the second proviso to Section 14(1) of the Act necessarily requires a 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 its satisfaction, the Magistrate can pass appropriate orders regarding taking of possession of the secured assets.”

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13. In Tulsi Rocks Private Limited & Others -vs- Bank of India & Another (AIR 2019 Telangana 13) Division Bench of the Hon’ble High Court placing reliance upon Commissioner of Central Excise -vs- M/s. Harichand Shri Gopal, (2011 AIR SCW 1119) held that the Courts have always invoked the doctrine of ‘substantial compliance’ to avoid hardship in cases where

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata

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a party does all that can reasonably be expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the essence of the substance of the requirements. Hon’ble Apex Court in the aforesaid case held that the Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Hon’ble High Court held that Clauses (i) to (ix) of the first proviso to Section 14 (1) of the Act merely provides the form in which the essential averments for an application under Section 14 of the Act are to be made. Therefore, what is important, is the substance and not the form.

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14. Now we have to examine the order passed by Learned Chief Judicial Magistrate as to whether substantially it complies the mandate of law or not?

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15. As has been observed above, the first proviso to Section 14 sub-section (1) of the Act as well as the judgment of the Noble Kumar (supra), all the nine points have to be considered by the Learned Chief Judicial Magistrate while passing the order under Section 14 of the Act. A perusal of the order passed by the Learned Chief Judicial Magistrate reveals that he has in detail considered all the nine points, as required under the law. No doubt, he has not mentioned point-wise. But as has been held in the case of Tulsi Rocks Private Limited (supra) it is not the form but the substance of the order which has to be looked into at the time of decision. Learned Chief Judicial Magistrate, while

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata passing the order has also recorded that he has gone through the records and further he found it a fit case to pass order under Section 14 of the Act. All the nine points enumerated above were duly considered by the Learned Chief Judicial Magistrate. Hence, I do not find any infirmity in the order of the Learned Chief Judicial Magistrate passed under Section 14 of the Act.

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16. Although a fact is recorded by the Learned DRT that Mr. Abhishek Bhattacharjee was the Advocate-on-record of the Secured Creditor who was appointed as Commissioner but this fact is challenged by the Secured Creditor in the appeal. No material could be placed in appeal to substantiate that Mr. Bhattacharjee was the Advocate-on-record of the Secured Creditor either before the Learned Chief Judicial Magistrate or before the Learned DRT. I have also perused the records of Learned DRT but there is nothing on record to substantiate the observation made by the Learned DRT that Mr. Abhishek Bhattacharjee was the Advocate-on-record of the Secured Creditor.

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17. In view of the discussion made above, I am of the considered view that Learned DRT has mis-directed itself in passing the impugned order which suffers from material illegality and is liable to be set aside.

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18. Accordingly, appeal deserved to be allowed.

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O R D E R E D

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Appeal is allowed. The impugned order dated 26^th June, 2024, passed by Learned DRT-III, in

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Misc. Appeal No. 83 of 2024-DRAT-Kolkata I.A. 1435 of 2024 in S.A. 217 of 2023 (Samir Dey & Another

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-vs- IDFC First Bank Limited), stands dismissed.

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No order as to costs.

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Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

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File be consigned to Record room.

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Order signed, dated and pronounced in open Court.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 12^th March, 2025 ac

Idfc First Bank Ltd. v. Mr. Samir Dey

Case brief

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Idfc First Bank Ltd. v. Mr. Samir Dey

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