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Sudip Ahluwalia, J.—By this application under Section 482 of the Code of Criminal Procedure, the petitioner/accused seeks quashing of the proceedings of G.R. No. 4839 of 2012, arising out of Taltala Police Station Case No. 381 of 2012, dated 21.12.2012 under Sections 341 /353 of the Indian Penal Code, pending in Court of the Ld. 20th Metropolitan Magistrate, Calcutta.
Before proceeding to go deeper into the matter, it would be proper to first go through the text of the First Information Report, lodged by the complainant Paul Anthony Maliakal, who claims to be the Authorised Officer of South Indian Bank Ltd., 20A, Park Street, Kolkata - 16. The allegations in the written complaint, which has been treated as the FIR, are set out as under:--
"I, Paul Anthony Maliakal, AGM and Authorised Officer, the South Indian Bank Limited, 20A, Park Street, Kolkata-16, empowered under the SARFAESI Act, 2002, and as per the CMM order dated 19.5.08, authorised to take possession of the property mentioned in the letter dated 12.12.12. I, along with your police personnels deployed to assist me, for taking possession of the premises situated at 85, S.N. Banerjee Road, Kolkata 13, we went to the said premises.
I have insisted to give me the vacant possession of secured premises. I have faced tough resistance from the borrower/guarantors and their representatives. Considering the law and order situation, I could not take possession of the property."
The case of the petitioner is that he is the Director of the Company "Plastosen Limited" which had been doing banking transactions with the South Indian Bank since 2005. Subsequently however certain differences and disputes arose between those parties. The said Bank first filed an application under section 19 before the DRT, Kolkata against the principle debtor "Plastosen Limited", the petitioner as the personal guarantor, and M/s. Sen Holdings Pvt. Ltd., the owner of two flats, as the mortgager of the flats. However during the pendency of the aforesaid Original Application itself, the Bank switched to a different course of action by issuing a notice on 12/6/2007 under section 13(2) of the SARFAESI Act, 2002. The petitioner challenged the notice and replied to the same on 14.08.2007. But in the meantime the Bank had moved the Tribunal and obtained an ex parte order on 18th July, 2007 of an injunction and appointment of a Receiver to take possession of the mortgaged flats.
According to the petitioner, in view of the aforesaid pendency of proceedings before the DRT, the subsequent notice under Section 13(2) lost its force and validity. But the Bank on 12th of October, 2007, issued a possession notice under section 13(4) . The petitioner therefore moved an application under section 17 on 17.11.2007 being S.A. 63 of 2007 in the DRT, and obtained some order as late as on 14.01.2015. But in the meantime the Bank had already moved an Application number 1 of 2008 before the Ld. Chief Metropolitan Magistrate, Calcutta and obtained an order U/S. 14 of the SARFAESI Act, directing the O/C of Taltola P.S. to provide Police help to the petitioner for taking possession of the secured asset. The contention of the petitioner is that such order was passed without notifying the affected parties/lessees and is therefore illegal. Subsequently on 25.06.2008, the DRT stayed operation of the notices under section 13(2) of the SARFAESI Act. The petitioner thus claims that the Bank was not justified in attempting to take actual possession of the secured assets as the relevant provisions of the SARFAESI Act were not followed.
He has also assailed the FIR lodged against him by contending that there is no question of any "wrongful restraint or assault on a Public Officer", since the defacto complainant, who is admittedly an employee/representative of a Private Bank is not a "Public Officer". He has further asserted that in any case the FIR or the material available does not make out a case of "assault", as there is no allegation regarding the use of any "criminal force".
The attention of this Court has been drawn to the certain provisions of the SARFAESI Act, 2002 and decisions of the Supreme Court and various High Courts in this behalf by the petitioner''s side. In Standard Chartered Bank Vs. V. Noble Kumar and Others, the Supreme Court had observed -
"6. Pursuant to the abovementioned application, the Chief Judicial Magistrate, Chengalpattu by his proceeding dated 14-12-2009 appointed an Advocate Commissioner to take possession of the secured asset and to hand over the same to the appellant herein.
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 and documents, if any, related thereto in terms of the request received by him without any further scrutiny of the matter.
We are of the opinion that the High Court clearly erred in recording such a conclusion. The language of Rule 8 does not demand such a construction. On the other hand, a Magistrate whose functioning is structured by the Code of Criminal Procedure is required to act in accordance with the provisions of the said Code unless expressly ordained otherwise by any other law. It is not a case that CrPC never prescribed for the procedure to be followed by the Magistrate in a case where the Magistrate is required to take possession of property. For example, under Section 83 of the Code, a criminal court is authorised to attach the movable or immovable property or both belonging to a proclaimed offender. Sub-sections (3) and (4) to Section 83 specifically provide that once an order of attachment under Sub-section (1) is made by the criminal court, the property which is the subject-matter of such attachment shall either by seized or taken possession of as the case may be depending upon the fact whether the property is movable or immovable. Both the sub-section (6) that the powers, duties and liabilities of a Receiver appointed under Section 83 are the same as those of a Receiver appointed under the Code of Civil Procedure, 1908.
Order 40 of the Code of Civil Procedure deals with the appointment of the Receiver. Rule 1 authorises the court to appoint a Receiver:
"1. Appointment of Receivers.--(1) Where it appears to the court to be just and convenient, the court may by order-
(a) appoint a Receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the Receiver, and
(d) confer upon the Receiver all such powers, as to bringing and defending suit and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the court thinks fit.
(2) Nothing in this Rule shall authorise the court to remove from the possession or custody of property, and person whom any party to the suit has not a present right so to remove."
(Emphasis added).
It can also be noticed from Rule (1) that the power of the civil court to appoint a Receiver could be exercised either before or after passing of the decree.
Therefore, there is no justification for the conclusion that the Receiver appointed by the Magistrate is also required to follow Rule 8 of the Security Interest (Enforcement) Rules, 2002. The procedure to be followed by the Receiver is otherwise regulated by law. Rule 8 provides for the procedure to be followed by a secured creditor taking possession of the secured asset without the intervention of the court. Such a process was unknown prior to the SARFAESI Act. So, specific provision is made under Rule 8 to ensure transparency in taking such possession. We do not see any conflict between different procedures prescribed by law for taking possession of the secured asset. The finding of the High Court in our view is unsustainable."
In Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Ltd. and Others, it was held -
"21. When we read the different provisions of Section 13 of the SARFAESI Act extracted above, we find that Sub-section (4) of Section 13 provides that in case the borrower fails to discharge his liability in full within sixty days from the date of notice provided in Sub-section (2) of Section 13 of the SARFAESI Act, the secured creditor may take recourse to one or more of the measures mentioned therein to recover his secured debt. One of the measures mentioned in clause (a) in sub-section (4) of Section 13 of the SARFAESI Act is to take possession of the secured assets of the borrower including the right to transfer by way of lease. Where, however, the lawful possession of the secured asset is not with the borrower, but with the lessee under a valid lease, the secured creditor cannot take over possession of the secured asset until the lawful possession of the lessee gets determined. There is, however, no mention in sub-section (4) of Section 13 of the SARFAESI Act that a lease made by the borrower in favour of a lessee will stand determined on the secured creditor deciding to take any of the measures mentioned in Section 13 of the said Act. Sub-section (13) of Section 13 of the SARFAESI Act, however, provides that after receipt of notice referred to in Sub-section (2) of Section 13 of the SARFAESI Act, no borrower shall lease any of his secured assets referred to in the notice, without the prior written consent of the secured creditor. This provision in sub-section (13) of Section 13 of the SARFAESI Act and the provisions of the Transfer of Property Act enabling the borrower or the mortgagor to make a lease are inconsistent with each other. Hence, sub-section (13) of Section 13 of the SARFAESI Act will override the provisions of Section 65A of the Transfer of Property Act by virtue of Section 35 of the SARFAESI Act, and a lease of a secured asset made by the borrower after he receives the notice under sub-section (2) of Section 133 from the secured creditor intending to enforce that secured asset will not be a valid lease.
The opening words of sub-section (1) of Section 14 of the SARFAESI Act make it clear that 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 to be sold or transferred by the secured creditor "under the provisions of the 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. Thus, only if possession of the secured asset is required to be taken under the provisions of the SARFAESI Act, the secured creditor can move the Chief Metropolitan Magistrate or the District Magistrate for assistance to take possession of the secured asset. We have already held that Section 13 of the SARFAESI Act does not provide that the lease in respect of a secured asset will get determined when the secured creditor decides to take the measures in the said section. Hence, possession of the secured asset from a lessee in lawful possession under a valid lease is not required to be taken under the provisions of the SARFAESI Act and the Chief Metropolitan Magistrate or the District Magistrate, therefore, does not have any power under Section 14 of the SARFAESI Act to take possession of the secured asset from such a lessee and hand over the same to the secured creditor. When, therefore, a secured creditor moves the Chief Metropolitan Magistrate or the District Magistrate for assistance to take possession of the secured asset, he must state in the affidavit accompanying the application that the secured asset is not in possession of a lessee under the valid lease made prior to creation of the mortgage by the borrower or made in accordance with Section 65A of the Transfer of Property Act prior to receipt of a notice under sub-section (2) of Section 13 of the SARFAESI Act by the borrower. We would like to clarify that even in such cases where the secured creditor is unable to take possession of the secured asset after expiry of the period 60 days of the notice to the borrower of the intention of the secured creditor to enforce the secured asset to realize the secured debt, the secured creditor will have the right to receive any money due or which may become due, including rent, from the lessee to the borrower. This will be clear from clause (d) of sub-section (4) of Section 13 , which provides that in case the borrower fails to discharge his liability in full within the notice period, the secured creditor may require, at any time by notice in writing, any person who has acquired any of the assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.
A reading of sub-rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002 would show that the possession notice will have to be affixed on the outer door or at the conspicuous place of the property and also published, as soon as possible but in any case not later than seven days from the date of taking possession, in two leading newspapers, one in vernacular language having sufficient circulation in that locality, by the authorised officer. At this stage, the lessee of an immovable property will have notice of the secured creditor making efforts to take possession of the secured assets of the borrower. 21. When, therefore, a lessee becomes aware of the possession being taken by the secured creditor, in respect of the secured asset in respect of which he is the lessee, from the possession notice which is delivered, affixed or published in sub-rule (1) and sub-rule (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002, he may either surrender possession or resist the attempt of the secured creditor to take the possession of the secured asset by producing before the authorised officer proof that he was inducted as a lessee prior to the creation of the mortgage or that he was a lessee under the mortgagor in accordance with the provisions of Section 65A of the Transfer of 5 Property Act and that the lease does not stand determined in accordance with Section 111 of the Transfer of Property Act. If the lessee surrenders possession, the lease even if valid gets determined in accordance with clause (f) of Section 111 of the Transfer of Property Act, but if he resists the attempt of the secured creditor to take possession, the authorised officer cannot evict the lessee by force but has to file an application before the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act and state in the affidavit accompanying the application, the name and address of the person claiming to be the lessee. When such an application is filed, the Chief Metropolitan Magistrate or the District Magistrate will have to give a notice and give an opportunity of hearing to the person claiming to be the lessee as well as to the secured creditor, consistent with the principles of natural justice, and then take a decision. If the Chief Metropolitan Magistrate or District Magistrate is satisfied that there is a valid lease created before the mortgage or there is a valid lease created after the mortgage in accordance with the requirements of Section 65A of the Transfer of Property Act 5 and that the lease has not been determined in accordance with the provisions of Section 111 of the Transfer of Property Act, he cannot pass an order for delivering possession of the secured asset to the secured creditor. But in case he comes to the conclusion that there is in fact no valid lease made either before creation of the mortgage or after creation of the mortgage satisfying the requirements of Section 65A of the Transfer of Property Act or that even though there was a valid lease, the lease stands determined in accordance with Section 111 of the Transfer of Property Act, he can pass an order for delivering possession of the secured asset to the secured creditor."
(Emphasis added).
In Manager, UCO Bank Vs. Samar Sarkar and Others, , a Single Judge of this Court had observed -
"7. I have considered the relevant provisions, being Sections 13 , 17 and 34 of the said Act. On perusal of those provisions, this Court does not find that the bank is authorised to evict a tenant from any mortgaged property in the process of realization of the dues of the landlord/borrower.
None of the provisions of the said Act authorises the bank to recover possession from a tenant under the borrower in a mortgaged property in the process of recovery of its dues from its borrower. If that be so, the bank cannot evict the tenant of a borrower from a mortgaged property by virtue of any of the provisions of the said Act and if any action of the bank which is not protected under the said Act, is challenged by such a tenant in a suit, such challenge cannot be held to be barred under the provision of Section 17 of the said Act."
(Emphasis added).
In Hutchison Essar South Ltd. Vs. Union Bank of India and Aditya Automation, , the Karnataka High Court observed -
"23. However if the secured asset is in the possession of a bonafide lessee or tenant, he cannot be thrown out by invoking Sections 13 and 14 of the Securitisation Act. In taking this view, I am fortified by the decision of Punjab and Haryana High Court in the case of Prem Gupta (supra). The decisions in the cases of C.B. Gautam, Ghatge Patil Transport Company, Tata Consulting Engineers and of Adair Dutt (supra) rendered while examining the provisions of IT Act are of grant guidance in resolving the present controversy. What is contemplated under Sections 13 and 14 of the Securitisation Act is only symbolic possession and not actual possession, if a bonafide third party is in occupation of the secured asset. It is also open to the mortgagee-Bank to sell the assets with the tenancy intact. Possession notice under Section 13(4) of the Securitisation Act is like an attachment notice, but it does not entitle the Bank to dispossess a person in possession of the mortgaged property. However, if the banker or purchaser of the secured asset has to take the actual possession, the same has to be in accordance with the due process of law only. This is the considered view taken by Patna High Court in the case of Abhay Kumar Pandey (supra) while dealing with the issue of possession of the property auctioned under Section 29 of the State Financial Corporation Act, 1951.
In the result this petition is allowed by holding that the respondent No. 1 can take only symbolic possession of the aforesaid premises from the petitioner, invoking Sections 13 and 14 of the Securitisation Act. The respondent No. 1 or the purchaser claiming under it has to take recourse to the appropriate legal proceedings for taking the actual possession of the aforesaid premises from the petitioner."
(Emphasis added).
Thereafter in "Mr. Basava Raju & Another v. Smt. Purnima SR & Another" [MFA Nos. 3236-3237/2010 (CPC)], the Karnataka High Court, relying on the above decision in "Hutchison Essar South Ltd" observed -
"5. Having thus heard both sides and after going through Sections 13 and 14 of the Securitization Act, 2003, the said provisions are silent as to the position where a person is in occupation as a bonafide tenant in the premises in question. This court, in the case of Hutchison Essar South Limited, supra has held at paragraph-23 thus:
"23. However if the secured asset is in the possession of a bonafide lessee or tenant...... ....This is the considered view taken by Patna High Court in the case of ABHAY KUMAR PANDEY (SUPRA) while dealing with the issue of possession of the property auctioned under Section 29 of the State Financial Corporation Act, 1951."
It is, therefore, clear from the aforesaid view taken by this court that if the bank or purchaser of the secured asset has to take actual possession, same has to be done to accordance with due process of law only. The Act also provides for an appeal under Section 17 of the Act to be preferred by any person aggrieved by any of the measures taken as is referred to in sub-section (4) of Section 13 of the Act. Therefore, it is clear that every such aggrieved person has a right to appeal to the Debt Recovery Tribunal."
(Emphasis added).
In view of the facts of the case narrated earlier and the above decisions relied on behalf of the petitioner, the sum and substance of the contentions raised on behalf of the petitioner can thus be summarized as follows:
"(1) That the secured creditor "South India Bank Ltd." of which the de-facto complainant is the authorized officer, was not entitled to take actual physical possession of the secured asset/disputed premises, and at the most could have taken only symbolic possession of the same in accordance with law, since a number of lessees were already occupying various portions of the said premises even before the borrower had started his transaction with the Bank;
(2) That the alleged order passed by the Ld. Chief Metropolitan Magistrate authorising the Bank to take possession of the property was bad since no notice was served upon the various lessees, thereby causing violation of the Principle of Natural Justice;
(3) That in any case the Bank had already taken symbolic possession of the property in question earlier, and so there was no question of taking any actual possession;
(4) That even in terms of the order passed by the Ld. Chief Metropolitan Magistrate, physical possession could not have been directly taken by the Bank. On the other hand in terms of the relevant provisions of the Act the Magistrate could only have taken possession of the asset and the documents relating thereto, and thereafter forwarded the same to the secured creditor;
(5) That no case U/S 353 of the IPC is made out as the complainant, who admittedly is not a "Public Officer", had no right to enter into the premises himself, and so even the question of "Wrongful Restraint" U/S 341 of the IPC does not arise.
(6) That even otherwise the FIR does not mention anything about use of "criminal force" by anyone including the petitioner, which is a necessary prerequisite to constitute the offence U/S 353 IPC."
The opposite party from its side has also placed certain decisions to challenge the petitioner''s contentions. These include some different extracts from the decisions of the Supreme Court in "Standard Chartered Bank v. V. Noble Kumar & Ors." And "Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited and others", which have already been cited on the half of the petitioner.
In Transcore Vs. Union of India (UOI) and Another, , the Supreme Court had explained in detail the purport and ramifications of the provisions of the "Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002" ("NPA Act" for short) as follows -
"S.H. KAPADIA, J.--A short question of public importance arises for determination, namely, whether withdrawal of O.A. in terms of the first proviso to Section 19(1) of the DRT Act, 1993 (inserted by the Amending Act No. 30 of 2004) is a condition precedent to taking recourse to the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("NPA Act" for short).
There is one more reason for enacting NPA Act, 2002. When the civil courts failed to expeditiously decide suits filed by the banks/FIs., Parliament enacted the DRT Act, 1993. However, the DRT did not provide for assignment of debts to securitization companies. The secured assets also could not be liquidated in time. In order to empower banks or FIs. to liquidate the assets and the secured interest, the NPA Act is enacted in 2002. The enactment of NPA Act is, therefore, not in derogation of the DRT Act. The NPA Act removes the fetters which were in existence on the rights of the secured creditors. The NPA Act is inspired by the provisions of the State, 1951 ("SFC Act"), in particular Sections 29 and 31 thereof. The NPA Act proceeds on the basis that the liability of the borrower to repay has crystallized; that the debt has become due and that on account of delay the account of the borrower has become sub-standard and non-performing. The object of the DRT Act as well as the NPA Act is recovery of debt by non-adjudicatory process. These two enactments provide for cumulative remedies to the secured creditors. By removing all fetters on the rights of the secured creditor, he is given a right to choose one or more of the cumulative remedies. The object behind Section 13 of the NPA Act and Section 17 r/w Section 19 of the DRT Act is the same, namely, recovery of debt. Conceptually, there is no inherent or implied inconsistency between the two remedies. Therefore, as stated above, the object behind the enactment of the NPA Act is to accelerate the process of recovery of debt and to remove deficiencies/obstacles in the way of realisation of debt under the DRT Act by the enactment of the NPA Act, 2002.
In our view, Section 17(4) shows that the secured creditor is free to take recourse to any of the measures under Section 13(4) notwithstanding anything contained in any other law for the time being in force, e.g., for the sake of argument, if in the given case the measures undertaken by the secured creditor under Section 13(4) comes in conflict with, let us say the provision under the State land revenue law, then notwithstanding such conflict, the provision of Section 13(4) shall override the local law. This position also stands clarified by Section 35 of the NPA Act which states that the provisions of NPA Act shall override all other laws which are inconsistent with the NPA Act. Section 35 is also important from another angle. As stated above, the NPA Act is not inherently or impliedly inconsistent with the DRT Act in terms of remedies for enforcement of securities. Section 35 gives an overriding effect to the NPA Act with all other laws if such other laws are inconsistent with the NPA Act. As far as the present case is concerned, the remedies are complimentary to each other and, therefore, the doctrine of election has no application to the present case.
We have already analysed the scheme of both the Acts. Basically, the NPA Act is enacted to enforce the interest in the financial assets which belongs to the bank/FI by virtue of the contract between the parties or by operation of common law principles or by law. The very object of Section 13 of NPA Act is recovery by non-adjudicatory process. A secured asset under NPA Act is an asset in which interest is created by the borrower in favour of the bank/FI and on that basis alone the NPA Act seeks to enforce the security interest by non-adjudicatory process. Essentially, the NPA Act deals with the rights of the secured creditor. The NPA Act proceeds on the basis that the debtor has failed not only to repay the debt, but he has also failed to maintain the level of margin and to maintain value of the security at a level is the other obligation of the debtor. It is this other obligation which invites applicability of NPA Act. It is for this reason, that Sections 13(1) and 13(2) of the NPA Act proceeds on the basis that security interest in the bank/FI; needs to be enforced expeditiously without the intervention of the court/tribunal; that liability of the borrower has accrued and on account of default in repayment, the account of the borrower in the books of the bank has become non-performing. For the above reasons, NPA Act states that the enforcement could take place by non-adjudicatory process and that the said Act removes all fetters under the above circumstances on the rights of the secured creditor.
The word possession is a relative concept. It is not an absolute concept. The dichotomy between symbolic and physical possession does not find place in the Act. As stated above, there is a conceptual distinction between securities by which the creditor obtains ownership of or interest in the property concerned (mortgages) and securities where the creditor obtains neither an interest in nor possession of the property but the property is appropriated to the satisfaction of the debt (charges). Basically, the NPA Act deals with the former type of securities under which the secured creditor, namely, the bank/FI obtains interest in the property concerned. It is for this reason that the NPA Act ousts the intervention of the courts/tribunals.
Keeping the above conceptual aspect in mind, we find that Section 13(4) of the NPA Act proceeds on the basis that the borrower, who is under a liability, has failed to discharge his liability within the period prescribed under Section 13(2) , which enables the secured creditor to take recourse to one of the measures, namely, taking possession of the secured assets including the right to transfer by way of lease, assignment or sale for realizing the secured assets. Section 13(4-A) refers to the word "possession" simpliciter. There is no dichotomy in sub-section (4-A) as pleaded on behalf of the borrowers. Under Rule 8 of the 2002 Rules, the authorised officer is empowered to take possession by delivering the possession notice prepared as nearly as possible in Appendix IV to the 2002 Rules. That notice is required to be affixed on the property. Rule 8 deals with sale of immovable secured assets. Appendix IV prescribes the form of possession notice. It inter alia states that notice is given to the borrower who has failed to repay the amount informing him and the public that the bank/FI has taken possession of the property under Section 13(4) read with Rule 9 of the 2002 Rules. Rule 9 relates to time of sale, issue of sale certificate and delivery of possession. Rule 9(6) states that on confirmation of sale, if the terms of payment are complied with, the authorised officer shall issue a sale certificate in favour of the purchaser in the form given in Appendix V to the 2002 Rules. Rule 9(9) states that the authorised officer shall deliver the property to the buyer free from all encumbrances known to the secured creditor or not known to the secured creditor. (emphasis supplied). Section 14 of the NPA Act states that where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred, the secured creditor may, for the purpose of taking possession, request in writing to the District Magistrate to take possession thereof. Section 17(1) of NPA Act refers to right of appeal. Section 17(3) states that if the DRT as an appellate authority after examining the facts and circumstances of the case comes to the conclusion that any of the measures under Section 13(4) taken by the secured creditor are not in accordance with the provisions of the Act, it may by order declare that the recourse taken to any one or more measures is invalid, and consequently, restore possession to the borrower and can also restore management of the business of the borrower. Therefore, the scheme of Section 13(4) read with Section shows that if the borrower is dispossessed, not in accordance with the provisions of the Act, then the DRT is entitled to put the clock back by restoring the status quo ante. Therefore, it cannot be said that if possession is taken before confirmation of sale, the rights of the borrower to get the dispute adjudicated upon is defeated by the authorised officer taking possession. As stated above, the NPA Act provides for recovery of possession by non-adjudicatory process, therefore, to say that the rights of the borrower would be defeated without adjudication would be erroneous. Rule 8, undoubtedly, refers to sale of immovable secured asset. However, Rule 8(4) indicates that where possession is taken by the authorised officer before issuance of sale certificate under Rule 9, the authorised officer shall take steps for preservation and protection of secured assets till they are sold or otherwise disposed of. Under Section 13(8) , if the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the creditor before the date fixed for sale or transfer, the asset shall not be sold or transferred. The costs, charges and expenses referred to in Section 13(8) will include costs, charges and expenses which the authorised officer incurs for preserving and protecting the secured assets till they are sold or disposed of in terms of Rule 8(4). Thus, Rule 8 deals with the stage anterior to the issuance of sale certificate and delivery of possession under Rule 9. Till the time of issuance of sale certificate, the authorised officer is like a court receiver under Order XL Rule 1 CPC. The court receiver can take symbolic possession and in appropriate cases where the court receiver finds that a third party interest is likely to be created overnight, he can take actual possession even prior to the decree. The authorized officer under Rule 8 has greater powers than even a court receiver as security interest in the property is already created in favour of the banks/FIs. That interest needs to be protected. Therefore, Rule 8 provides that till issuance of the sale certificate under Rule 9, the authorized officer shall take such steps as he deems fit to preserve the secured asset. It is well settled that third party interests are created overnight and in very many cases those third parties take up the defence of being a bona fide purchaser for value without notice. It is these types of disputes which are sought to be avoided by Rule 8 read with Rule 9 of the 2002 Rules. In the circumstances, the drawing of dichotomy between symbolic and actual possession does not find place in the scheme of the NPA Act read with the 2002 Rules."
In "Harshad Govardhan Sondagar v. International Assets Reconstruction Company Ltd. & Ors." it was observed -
"36. We may now consider the contention of the respondents that some of the appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us, the appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. Section 107 of the Transfer of Property Act provides that a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made ''only by a registered instrument'' and all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence, if any of the appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord."
In "Standard Chartered Bank v. V. Noble Kumar & Ors." the relevant observations were -
"26. It is in the abovementioned background of the legal frame of Sections 13 and 14 , we are required to examine the correctness of the conclusions recorded by the High Court. Having regard to the scheme of Sections 13 and 14 and the object of the enactment, we do not see any warrant to record the conclusion that it is only after making an unsuccessful attempt to take possession of the secured asset, a secured creditor can approach the Magistrate. No doubt that a secured creditor may initially resort to the procedure under Section 13(4) and on facing resistance, he may still approach the Magistrate under Section 14 . But, it is not mandatory for the secured creditor to make attempt to obtain possession on his own before approaching the Magistrate under Section 14 . The submission that such a construction would deprive the borrower of a remedy under Section 17 is rooted in a misconception of the scope of Section 17 .
Therefore, there is no justification for the conclusion that the Receiver appointed by the Magistrate is also required to follow Rule 8 of the Security Interest (Enforcement) Rules, 2002. The procedure to be followed by the Receiver is otherwise regulated by law. Rule 8 provides for the procedure to be followed by a secured creditor taking possession of the secured asset without the intervention of the court. Such a process was unknown prior to the SARFAESI Act. So, specific provision is made under Rule 8 to ensure transparency in taking such possession. We do not see any conflict between different procedures prescribed by law for taking possession of the secured asset. The finding of the High Court in our view is unsustainable.
In this connection, it is material to refer to the judgment in Mardia Chemicals wherein the Court was concerned with the legality and validity of the SARFASESI Act. The Court held the Act to be valid except Section 17(2) thereof as it then stood. In Paras 59, 62 and 76 of the judgment the Court in terms held that in remedy under Section 17 of the Act was essentially like filing a suit in a civil court though it was called an appeal. It is also relevant to note that in the ultimate conclusions in Para 80 of the judgment this Court held in sub-para (2) thereof as follows: (SCC p. 362)
"80.(2) As already discussed earlier, on measures having been taken under sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debts Recovery Tribunal."
The grievance of the respondent that it will be left with no remedy is, therefore, misplaced. As held by a Bench of three Judges in Mardia Chemicals, it would be open to the borrower to file an appeal under Section 17 any time after the measures are taken under Section 13(4) and before the date of sale/auction of the property. The same would apply if the secured creditor resorts to Section 14 and takes possession of the property with the help of the officer appointed by the Magistrate.
In view of our conclusion on the scope of Section 17 recorded earlier it would normally have been open to the respondent to prefer an appeal under Section 17 raising objections regarding legality of the decision of the Magistrate to deprive the respondent of the possession of the secured asset. But in view of the fact that the respondent chose to challenge the decision of the Magistrate by invoking the jurisdiction of the High Court under Article 226 of the Constitution and in view of the fact that the respondent does not have any substantive objection as can be discerned from the record, we make it clear that the respondent in the instant case would not be entitled to avail the remedy under Section 17 as the respondent stalled the proceedings for a period of almost 4 years. It is worthwhile remembering that the respondent did not even choose to raise any objections to the demand issued under Section 13(2) of the Act. However, we make it clear that it is always open to the respondent to seek restoration of his property by complying with sub-section (8) of Section 13 of the Act. Criminal appeal arising out of SLP (Crl.) No. 6560 of 2011."
In Kanaiyalal Lalchand Sachdev and Others Vs. State of Maharashtra and Others, , it was held -
"22. We are in respectful agreement with the above enunciation of law on the point. It is manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4) , and therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the Act itself contemplates an efficacious remedy for the borrower or any person affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT.
In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well-settled that ordinarily relief under Articles 226 /227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See: Sadhana Lodh v. National Insurance Co. Ltd. & Anr.; Surya Dev Rai v. Ram Chander Rai & Ors.; State Bank of India v. Allied Chemical Laboratories & Anr.)."
Conclusion:--
The Petitioner''s basic stress is on the legal fiction that a bona fide Lessee cannot be evicted from the secured asset and in such case only "symbolic" and not "actual" possession can be taken by the secured creditor. This is not in consonance with the Supreme Court''s observation in "Transcore v. Union of India and Another" that "... the drawing of dichotomy between symbolic and actual possession does not find place in the scheme of the NPA Act read with the 2002 Rules". As such, the contention that after having taken symbolic possession of the secured properties, the secured creditor is debarred from proceeding further to take physical possession is not tenable as there is no bar under the relevant rules to taking of physical possession after having taken symbolic possession earlier. Even otherwise, it goes without saying that such restriction against taking of possession applies only in case where there is the existence of a valid lease. Besides, as held by the Supreme Court in "Harshad Govardhan Sondagar" (supra), such lessee must hold a valid registered Lease deed.
The petitioner has mentioned above the existence of as many as four different lessees in the premises. But none of them appear to have any valid registered Lease deed. Only unregistered/insufficiently stamped "Tenancy Agreements" have been placed on record. Incidentally, in the case of the lessee "M/s. Sen Shipping Private Limited", it transpires that the petitioner himself is one of the directors of that company, which is the lessee under "M/s. Sen Holdings Private Limited", of which again the petitioner himself is the director. Strangely, the unregistered Tenancy Agreement dated 25th day of April 2004, shows the Tenancy to have commenced retrospectively two years earlier. In any event, even assuming that the purported lessees are actually occupying their portions of the premises, still they would have no right to be protected as they are not holding any registered/valid Lease deeds.
Similarly the contention that the order passed by the Ld. Chief Metropolitan Magistrate does not authorise the secured creditor to directly take over physical possession is also not convincing. The stipulation that the after taking possession of the asset or any documents connected to the same, the Magistrate is then to forward the same to the secured creditor does not necessarily indicate that there must have to be any considerable time gap between the taking of possession and forwarding of the same to the creditor. It is possible to take over any documents by the executing authority/police and deliver the same to the Magistrate who might in turn "forward" those to the creditor''. But the idea of a similar physical delivery of the actual asset in the form of an immovable property to the Magistrate who in turn would thereafter "forward" it to the secured creditor is downright preposterous. In such a situation there would be absolutely no impropriety if the executing authority takes possession of such asset and immediately delivers it to the secured creditor in compliance of the Magistrate''s order.
The other contention of the petitioner that the Bank was not justified in taking recourse to proceedings under Section 13(4) and 14 since the application originally filed by was still pending in the DRT also cannot be supported in view of the following observations of the Supreme Court in "Transcore versus Union of India" (supra) -
"As stated above, the NPA Act provides for recovery of possession by non-adjudicatory process, therefore, to say that the rights of the borrower would be defeated without adjudication would be erroneous..........
In our view, Section 17(4) shows that the secured creditor is free to take recourse to any of the measures under Section 13 (4) notwithstanding anything contained in any other law for the time being in force..."
Undoubtedly the complainant who represents a Private Bank cannot be regarded as a "Public Officer" in his own right. But the same cannot be said in case of the Police personnel who had been deputed to assist in delivering possession of the premises to the complainant. They are undoubtedly "Public Officers" within the meaning of IPC. Their statements recorded under section 161 of the Cr.P.C. are on record from page 221 to 224. There is a reference to ''resistance'' in the FIR, on account of which all of them had to retreat/withdraw "keeping in mind the law and order situation". In these circumstances, it cannot be inferred that there was absolutely no use of, or not even the threat of use of criminal force to prevent them from taking possession. In the given circumstances, the complainant was well within his right to lodge the FIR in which the cognizable offences U/Ss. 341 and 353 of the IPC have been alleged. The contentions to assail the FIR raised on behalf of the petitioner in this regard are therefore untenable.
For the aforesaid reasons this Court does not find any substantive merits in the revisional application which is accordingly dismissed.