NKGSB COOPERATIVE BANK LIMITED versus SUBIR CHAKRAVARTY & ORS. on 25 February 2022

NKGSB COOPERATIVE BANK LIMITED

v.

SUBIR CHAKRAVARTY & ORS.

(Civil Appeal No. 1637 of 2022)

FEBRUARY 25, 2022

[A. M. KHANWILKAR AND C. T. RAVIKUMAR, JJ.]

Securitisation and Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002: s.14(1A) – Power ofCMM/DM to appoint and authorize an advocate to take possessionof the secured assets and documents and to forward the same to thesecured creditors by virtue of s.14(1A) of the 2002 Act – Held:Purpose of the 2002 Act is to empower the financial institutions tomanage the non performing assets by adopting measures forrecovery or reconstruction – s.13(4) states that when a default iscommitted by the borrower in discharging his liability in full, thesecured creditor may take recourse to one or more of the measures– One of the measures is to take possession of the secured assets ofthe borrower – If secured creditor intends to take possession ofsecured assets, the application u/s.14 must be moved to CMM/DMin writing – s.14(1A) added by amendment provides that CMM/DMmay authorize any officer subordinate to him for the aforesaidpurpose – The statutory obligation enjoined upon the CMM/DM isto immediately move into action after receipt of a written applicationunder s.14(1) of the 2002 Act – There is de jure functionalsubordinate relationship between the CMM/DM and the advocatebeing an officer of the Court – There is no rule as such framed bythe central government which expressly or impliedly prohibits CMM/DM to engage an advocate commissioner for taking possession –Hence, by applying ‘functional subordination’ test, CMM/DM mayappoint advocate as a subordinate officer for the purpose of s.14(1A) of the 2002 Act.

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1178SUPREME COURT REPORTS

AAllowing the Appeals filed by secured creditors anddelinking the SLP (Civil) No.12011 of 2020 filed by borrowers,the Court HELD: 1. The underlying purpose of the 2002 Act is toempower the financial institutions in India to have similar powersBas enjoyed by their counterparts, namely, international banks inother countries. One such feature is to empower the financialinstitutions to take possession of securities and sell them. Section13 deals with enforcement of security interest. Sub-Section (4)thereof envisages that in the event a default is committed by theborrower in discharging his liability in full within the periodCspecified in sub-Section (2), the secured creditor may takerecourse to one or more of the measures provided in Sub-Section(4). One of the measures is to take possession of the securedassets of the borrower including the right to transfer by way oflease, assignment or sale for realising the secured asset. SectionD14 of the 2002 Act predicates that if the secured creditor intendsto take possession of the secured assets, must approach theCMM/DM by way of an application, in writing, and on receipt ofsuch request, the CMM/DM must move into action in rightearnest. After passing an order thereon, he/she (CMM/DM) mustproceed to take possession of the secured assets and documentsErelating thereto for being forwarded to the secured creditor interms of Section 14(1) read with Section 14(2) of the 2002 Act.As noted earlier, Section 14(2) is an enabling provision andpermits the CMM/DM to take such steps and use force, as may,in his opinion, be necessary. This position obtained even before Fthe amendment of 2013 i.e., insertion of sub-Section (1A) andcontinues to this date. Sub-Section (1A) is in the nature of anexplanatory provision and it merely restates the implicit powerof the CMM/DM in taking services of any officer subordinate tohim. The insertion of Sub-Section (1A) is not to invest a new power for the first time in the CMM/DM as such. [Paras 22, 23,G24][1198-G-H; 1199-A-B; 1195-C-D; 1199-F-H]

2. The statutory obligation enjoined upon the CMM/DM isto immediately move into action after receipt of a writtenapplication under Section 14(1) of the 2002 Act from the secured H

creditor for that purpose. It is common knowledge that in therespective jurisdictions, there is only one CMM/DM. If he isexpected to reach at every location himself for taking possession,in some jurisdictions it would be impracticable, if not impossible,for him to do so owing to large number of applications in thegiven jurisdiction being a commercial city. Accordingly, strictconstruct would defeat the legislative intent and purpose forenacting the 2002 Act. Indeed, logistical problems of the Officeof the CMM/DM cannot be the basis to overlook the statutoryprovision. It could be taken by the CMM/DM himself/herself orthrough any officer subordinate to him/her, including the AdvocateCommissioner who is considered as an officer of his/her court.The Advocate Commissioner is not a new concept. The advocatesare appointed as Court Commissioner to perform diverseadministrative and ministerial work as per the provisions of Codeof Civil Procedure and Code of Criminal Procedure. An advocateis an officer of the court. [Paras 28, 29, 36][1204-G-H;1205-C-D; 1210-C-D]

3. Whereas, applying the “functional subordination” test,this Court held that sub-Section (1A) of Section 14 of the 2002Act is no impediment for the CMM/DM to engage services of anadvocate (an officer of the court) — only for taking possession ofsecured assets and documents relating thereto and to forwardthe same to the secured creditor. It does not follow that theadvocate so appointed needs to be on the rolls in the Office ofthe CMM/DM or in public service. There is intrinsic de jurefunctional subordinate relationship between the CMM/DM andthe advocate being an officer of the court. The apprehension ofthe borrowers about improper execution of orders of the CMM/DM passed under Section 14(1) of the 2002 Act by the AdvocateCommissioner, is plainly misplaced. There is no reason to assumethat the advocate so appointed by the CMM/DM would misusethe task entrusted to him/her and that will not be carried outstrictly as per law or it would be a case of abuse of power. Rather,going by the institutional faith or trust reposed on advocates beingofficers of the court, there must be a presumption that if anadvocate is appointed as commissioner for execution of the orderspassed by the CMM/DM under Section 14(1) of the 2002 Act, AB

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Athat responsibility and duty will be discharged honestly and inaccordance with rules of law. [Para 42][1212-E-H; 1213-A-C]Authorised Officer, Indian Bank v. D. Visalakshi & Anr.[2019] SCR 177 – relied on.

Muhammed Ashraf & Anr. v. Union of India & Ors.BAIR 2009 Kerala 14; The Federal Bank Ltd.,Ernakulam v. A.V. Punnus AIR 2014 Kerala 7; V.S.Sunitha v. Federal Bank Ltd. 2018 SCC OnLine Ker12866; S. Chandramohan & Anr. v. The ChiefMetropolitan Magistrate, Egmore, Chennai & Ors.C2014 SCC OnLine Mad 7869; Rahul Chaudhary v.Andhra Bank & Ors. 2020 SCC OnLine Del 284; M/s.J. Marks Exim (India) Pvt. Ltd. v. Punjab National Bank2017 SCC OnLine Bom 2246; Sakiri Vasu v. State ofUttar Pradesh & Ors. [2007] 11 SCR 980; DattatrayaMoreshwar v. The State of Bombay & Ors. [1952] SCRD612; Mahadev Govind Gharge & Ors. v. Special LandAcquisition Officer, Upper Krishna Project, Jamkhandi,Karnataka [2011] 8 SCR 829; Sangram Singh v.Election Tribunal, Kotah & Anr. [1955] SCR 1; A. St.Arunachalam Pillai v. M/s. Southern Roadways Ltd. &EAnr. 1960 SCR 764; S. Krishnaswamy Mudaliar & Anr.v. P.S. Palani Pillai & Anr. AIR 1957 Mad 599; B.Veeraswamy & Ors. v. State of Andhra Pradesh & Ors.AIR 1959 AP 413; Lalit Mohan Das v. The Advocate-General, Orissa & Anr. [1957] SCR 167; O.P. Sharma& Ors. v. High Court of Punjab & Haryana [2011]F6 SCR 301; Satheedevi v. Prasanna & Anr. [2010] 6SCR 657; M/s. Hiralal Rattanlal etc. etc. v. State of U.P.& Anr. etc. etc. [1973] 2 SCR 502; Dipak Babaria &Anr. v. State of Gujarat & Ors. [2014] 2 SCR 71 –referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.1637 of2022.

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From the Judgment and Order dated 06.11.2019 of the High Courtof Judicature at Bombay in Writ Petition (L) 28480 of 2019.

With

Civil Appeal Nos.1638, 1639 and 1640 of 2022 and S.L.P. (Civil)No.12011 of 2020.

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Rana Mukherjee, Sr. Adv., Manish Shanker Srivastava, Ms.Kalpana, Ms. Pallavi Baghel, Abhishek Kumar Singh, Viraj Kadam, SoumyaDutta, Devendra Kumar Singh, Karunakar Mahalik, Manoranjan Mishra,Gouranga Biswal, B. Raghunath, Sriram P., Ms. N. C. Kavitha, PawanKr. Dabas, Ms. Prerna Robin, Ms. Muskaan Garg, Ms. Jessica Bhardwaj,Ms. Daisy Hannah, Ms. Kanika Sharma, Ms. Oindrilla Sen, M. L. Ganesh,K. V. Vijayakumar, Rahul Chitnis, Sachin Patil, Aaditya A. Pande, GeoJoseph, Ms. Shwetal Shepal, Advs. for the appearing parties.

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The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

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1. The seminal question involved in these cases is: whether it isopen to the District Magistrate[1] or the Chief Metropolitan Magistrate[2]to appoint an advocate and authorise him/her to take possession of thesecured assets and documents relating thereto and to forward the sameto the secured creditor within the meaning of Section 14(1A) of theGSecuritisation and Reconstruction of Financial Assets and Enforcementof Security Interest Act, 2002[3]?

1 for short, “DM”

2 for short, “CMM”

3 for short, “2002 Act”

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A2. The High Court of Judicature at Bombay[4] vide judgment andorder dated 6.11.2019 in Writ Petition (L) No.28480 of 2019 opined thatthe advocate, not being a subordinate officer to the CMM or DM, suchappointment would be illegal. Against this decision, four separate appeals[5]have been filed by the concerned parties. On the other hand, the HighCourt of Judicature at Madras[6] vide judgment and order dated 18.3.2020Bin C.R.P. No.790 of 2020 has taken a contrary view while followingearlier decision of the same High Court on the reasoning that the advocateis regarded as an officer of the court and, thus, subordinate to the CMMor the DM. Having so held, it allowed the civil revision petition filed bythe secured creditor (Canara Bank). Against this decision, a special leaveCpetition[7] has been filed by the borrowers.

3. The High Courts of Kerala (in Muhammed Ashraf & Anr. vs.Union of India & Ors.[8]; The Federal Bank Ltd., Ernakulam vs.A.V. Punnus[9]; and V.S. Sunitha vs. Federal Bank Ltd.[10]), Madras (inS. Chandramohan & Anr. vs. The Chief Metropolitan Magistrate,DEgmore, Chennai & Ors.[11]) and Delhi (in Rahul Chaudhary vs.Andhra Bank & Ors.[12]), have taken the same view as in the case ofCanara Bank impugned in the special leave petition[13] arising from thedecision of the Madras High Court.

4. Additionally relying on the dictum in M/s. J. Marks EximE(India) Pvt. Ltd. vs. Punjab National Bank[14] decided by the DivisionBench of the Bombay High Court, it was urged that the coordinate Benchof the Bombay High Court had answered the issue under considerationin favour of the secured creditors and against the borrowers on thesame lines as the view taken by other three High Courts, namely, High F4 for short, “Bombay High Court”5 Civil Appeal No….. of 2022 @ SLP (Civil) No.30240 of 2019; Civil Appeal No…..of 2022 @ SLP (Civil) No.2055 of 2020; Civil Appeal No…..of 2022 @ SLP (Civil)No……of 2022 @ Diary No.17059 of 2020; and Civil Appeal No…..of 2022 @ SLP(Civil) No……of 2022 @ Diary No.23733 of 2020

6 for short, “Madras High Court”

7 SLP (Civil) No.12011 of 2020G8 AIR 2009 Kerala 149 AIR 2014 Kerala 710 2018 SCC OnLine Ker 1286611 2014-5-L.W. 620: 2014 SCC OnLine Mad 786912 2020 SCC OnLine Del 284

13 see Footnote No.7H14 2017 SCC OnLine Bom 2246

Courts of Kerela, Madras and Delhi. However, in the judgment of theBombay High Court of coordinate Bench impugned before this Court, ithas been observed that the dictum in the said decision had not consideredthe precise question that has been dealt with in the impugned judgment.

5. Briefly stated, in each of the cases under consideration, theCMM/DM appointed an advocate purportedly in exercise of powersunder Section 14(1A) of the 2002 Act. In the cases arising from thejudgment of the Bombay High Court, the borrowers had urged beforethe High Court that the Additional Chief Metropolitan Magistrate[15], 3[rd]Court, Esplanade, Mumbai on application filed by the secured creditor(Bank) under Section 14 of the 2002 Act passed an order dated 26.7.2019,appointing an advocate to take possession of the secured assets anddocuments relating thereto and to forward the same to the securedcreditor. The order passed by the ACMM records that the Bank hadadvanced a loan in the sum of Rs.4.44 crore on 31.1.2015 to the borrowers,who had mortgaged Flat No.262, 26[th] Floor, Building No.02 with twobasement car spaces in a building known as ‘Kalpataru Pinnacle’ inGoregaon (West), Mumbai. Further, the borrowers had defaulted on30.10.2017. Their account was declared Non-Performing Asset[16]. As asequel, on 13.11.2017, a notice under Section 13(2) of the 2002 Act wasissued to them and posted by Registered Post A.D. The docket wasreturned with ‘intimation posted’ meaning thereby, the noticees werenot available at the given address. The order further records that theBank served the notice upon the borrowers by publication on 31.12.2017calling upon them to pay the outstanding dues within sixty days. However,loan amount remained unpaid. As a result, the secured creditor approachedthe ACMM to pass appropriate directions, on which application the statedorder dated 26.7.2019 came to be passed appointing an advocate. Thesame was communicated to the borrowers by the advocate on 11.10.2019.That order was challenged before the Bombay High Court by theborrowers by way of writ petition[17] under Article 226 of the Constitutionof India, which has been decided by the High Court vide impugnedjudgment and order holding that Section 14(1A) of the 2002 Act doesnot permit the CMM/DM to authorise an advocate. The language usedin the provision is amply clear. Such delegation could be done only to an 15 for short, “ACMM”

16 for short, “NPA”

17 Writ Petition (L) No.28480 of 2019

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Aofficer subordinate and none else. The High Court rejected the argumentthat the overburdened CMM/DM had inadequate subordinate staff andit would be difficult, if not virtually impossible for the secured creditor totake possession of and realise the outstanding dues by disposing thesecured asset. The High Court was not impressed with that argumentand preferred to strictly construe the stated provision. The securedBcreditors have assailed this decision by way of appeals[18] before thisCourt.

6. Reverting to the special leave petition[19] arising from the decisionof the Madras High Court. The Bank had given loan to the borrowersupon mortgage of their property. Despite the demand to clear theCoutstanding dues, the loan amount remained unpaid. Resultantly, the Bankclassified the account as NPA followed by notice under Section 13(2) ofthe 2002 Act dated 21.7.2017 to the borrowers. Eventually, the Banktook symbolic possession of the property through its authorised officerafter issuing possession notice. That was published in two leadingDnewspapers. The borrowers challenged the notice issued to them underSection 13(4) of the 2002 Act. That challenge was unsuccessful.Whereafter, the Bank invoked action under Section 14 of the 2002 Actby filing application before the CMM for taking possession of the securedassets. The borrowers challenged the sale notice by filing applicationbeing S.A. No.59 of 2019. No injunction was granted in favour of theEborrowers and to restrain the Bank from proceeding with the sale of thesecured property. Hence, the Bank pursued the application under Section14 of the 2002 Act before the CMM, which came to be disposed of on6.8.2019 by appointing an Advocate Commissioner to take possessionof the secured property. Thereafter, the application filed by the borrowers,Fbeing S.A. No.59 of 2019, came to be dismissed. In the interregnum, theborrowers filed another application in S.A. No.399 of 2019, challengingthe order dated 6.8.2019 passed by the CMM, appointing an AdvocateCommissioner, in Crl. M.P. No.2995 of 2019. The Debts RecoveryTribunal II[20], Chennai was pleased to allow S.A.No.399 of 2019, inter alia, holding that the procedure mandated under clauses (i) to (ix) of theGproviso to Section 14(1) of the 2002 Act had not been complied with bythe secured creditor (Bank) and in any case, the appointment of the 18 see Footnote No.5

19 see Footnote No.7H20 for short, “Tribunal”

Advocate Commissioner was illegal. The Tribunal allowed the challengevide order dated 4.2.2020. That decision came to be assailed by theBank before the Madras High Court by way of civil revision petition[21]under Article 227 of the Constitution of India. The High Court noted twoissues arising for its consideration, in paragraph 9 of the impugnedjudgment. The first issue was regarding the correctness of the conclusionrecorded by the Tribunal on the plea of non-compliance of clauses (i) to(ix) of Section 14 of the 2002 Act. That came to be set aside beingmanifestly erroneous (see paragraphs 10 and 11 of the impugnedjudgment). However, on the second issue about power of the CMM/DM to appoint an Advocate Commissioner, the High Court, amongstother, relied upon its earlier decision as well as of the High Courts ofDelhi and Kerala, to conclude that the Tribunal committed manifest error,including not to take notice of the decision of the same High Court referredto in the impugned judgment. In short, the Madras High Court acceptedthe argument of the secured creditor (Bank) that it was open to theCMM/DM to appoint an Advocate Commissioner for taking possessionof the secured assets and documents relating thereto for being forwardedto the secured creditor in terms of Section 14(1A) of the 2002 Act. Thisdecision has been challenged by the borrowers by way of a specialleave petition[22] before this Court.

7. We have heard Mr. Rana Mukherjee, learned senior counsel,Mr. Viraj Kadam, Mr. Manish Shanker Srivastava, Mr. Devendra KumarSingh and Mr. M.L. Ganesh, learned counsel appearing for the Banks,Mr. B. Raghunath, learned counsel appearing for the borrowers and Mr.Rahul Chitnis, learned counsel appearing for the State of Maharashtra.

8. As aforesaid, the one and only question common to all thesecases is: whether the CMM/DM can appoint an advocate in exercise ofpowers under Section 14(1A) of the 2002 Act? This issue arises becauseof the expression used in the said provision, “may authorise any officersubordinate to him”.

9. The earliest decision dealing with the issue under considerationis that of the High Court of Kerala in Muhammed Ashraf[23]whereinthe Division Bench of the High Court rejected the argument that 21 C.R.P. No.790 of 2020

22 see Footnote No.7

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Amandate of Section 14 obliges the CMM/DM to go personally andtake possession of the secured assets and documents relating thereto.It noted that Section 14(2) of the 2002 Act enabled the CMM/DM topass order even to take Police assistance and use all necessary powersin taking possession of the secured assets. To buttress this view,reference has been made to the decision of this Court in Sakiri VasuBvs. State of Uttar Pradesh & Ors.[24] wherein the Court noted that anexpress grant of statutory powers carries with it by necessaryimplication the authority to use all reasonable means to make suchgrant effective. In other words, the authority had implied powers togrant relief which is not expressly granted to it by the Act. On thatClogic, the Division Bench of the High Court of Kerala opined that itwould be open to the Magistrate who has the power under Section 14of the 2002 Act to take possession of the secured assets including totake assistance of Police including an Advocate Commissioner so asto facilitate the secured creditor to take over the secured assets. As aresult, the Magistrate could also appoint a commissioner for identificationDof the secured assets and taking possession thereof. This decision hasattained finality owing to the dismissal of S.L.P. (Civil) No.1671 of2009 on 2.2.2009 by this Court. Notably, this decision was renderedbefore the amendment of Section 14 and in particular insertion of sub-Section (1A)[25].E

10. The aforementioned decision, however, had been followed bythe learned Single Judge of the High Court of Kerala in the case of TheFederal Bank Ltd., Ernakulam[26] which had arisen after theamendment of Section 14 of the 2002 Act and insertion of sub-Section(1A) therein. Despite insertion of sub-Section (1A), learned Single JudgeFfollowing the judgment in Muhammed Ashraf[27],answered the issue inthe following words:

“5. …It may however appear at first blush that such an AdvocateCommissioner is not an officer subordinate to the DistrictMagistrate or the Chief Judicial Magistrate. But a reference toGSections 12 and 17 of the Code of Criminal Procedure, 1973

24 (2008) 2 SCC 409

25 Inserted by Act 1 of 2013, sec.6(b) (w.e.f. 15.1.2013, vide S.O.171(E), dated 15.1.2013)

H27 supra at Footnote No.8

indicates that the term District Magistrate or Chief MetropolitanMagistrate denotes the court and not the officer in person. AnAdvocate Commissioner is certainly an officer subordinateto the court and the words employed in Section 14 (1A) ofthe SARFAESI Act are not to be understood as meaning anofficer subordinate in service. Section 284 of the Code ofCriminal Procedure, 1973 in fact empowers an AdvocateCommissioner to record the examination of witnesses whosepersonal appearance in court is dispensed with. Similar provisionscan be found in Order XXVI Rule 17 of the Code of CivilProcedure, 1908 enabling the Advocate Commissioner to recordevidence of witnesses and Section 75 (g) thereof to perform anyministerial act even. Taking over possession of the secured assetand handing over the same to the creditor bank is nothing but aministerial act of the Advocate Commissioner on behalf of thecourt. The Advocate Commissioner exercising such functionunder Section 14 (1A) of the SARFAESI Act is onlydischarging his duty as an officer subordinate to the courtpresided by the Magistrate. The contention of the borrowerthat the Advocate Commissioner is not an officersubordinate in service to the Chief Judicial Magistrate andhence incompetent is only to be rejected.”

11. Once again, another learned Single Judge of the High Courtof Kerala in V.S. Sunitha[28]reiterated the same view and held that theMagistrate rendering assistance to the secured creditor is competent toappoint a commissioner to take possession of the secured assets.

12. This very issue had also arisen before the Madras High Courtin S. Chandramohan[29]. The Division Bench of the Madras High Courtafter adverting to Section 14(1A) of the 2002 Act went on to observe asfollows:

“8. ….

The same is an enabling provision conferring power on the ChiefMetropolitan Magistrate or District Magistrate to authorise any

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officer subordinate to him to take possession of the assets anddocuments relating thereto and forward the assets and documentsto the secured creditors.

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9. The Advocate Commissioners appointed by the learned ChiefMetropolitan Magistrate is in tune with Section 14(1-A) of theBSARFAESI Act, 2002. As per Section 14 of the Act, the securedcreditors can approach the Chief Metropolitan Magistrate/DistrictMagistrate to take possession of the assets and documents of thesecured creditor. The Chief Metropolitan Magistrate, instead ofpersonally visiting the spot to take possession of assets anddocuments, can very well appoint the Advocate Commissioner toCvisit on his behalf, as in the case of issuing of commissions underthe Civil Procedure Code, as it is not possible for the ChiefMetropolitan Magistrate/District Magistrate to visit personally totake possession.

10. The amendment inserted by Act 1 of 2013 viz., Section 14(1-DA) is permitting the Subordinate Officers to do the above saidacts and nowhere prohibits the Chief Metropolitan Magistrate fromauthorising an Advocate Commissioner to go on his behalf fortaking possession of assets and documents and forwarding thesame to the secured creditor. The amendment gives discretion tothe Chief Metropolitan Magistrate/District Magistrate either toEauthorise or take possession of such assets and document and theword used being ‘may’, it is not always necessary on the part ofthe Chief Metropolitan Magistrate to authorise any officersubordinate to him. It is a well settled proposition of law that theobservance of the word ‘may’ used in the statute is only directory,in the sense, non-compliance with those provisions will not renderFthe proceedings invalid. Sometimes, the word ‘shall’ may also bedirectory and not mandatory. ….”

It then adverted to the decisions of this Court in DattatrayaMoreshwar vs. The State of Bombay & Ors.[30], Mahadev GovindGharge & Ors. vs. Special Land Acquisition Officer, Upper KrishnaGProject, Jamkhandi, Karnataka[31]and Sangram Singh vs. ElectionTribunal, Kotah & Anr.[32]on the principles of interpretation of statuteand noted thus:30 AIR 1952 SC 18131 (2011) 6 SCC 321H32 AIR 1955 SC 425

“11.The object of the amendment introduced in Act 1 of2013 being to give assistance to the Chief MetropolitanMagistrate/District Magistrate, the Chief MetropolitanMagistrate is justified in appointing AdvocateCommissioners, instead of authorising Subordinate Officersto take possession. It is well settled in law that Advocatesare also Officers of the Court, though not subordinate toChief Metropolitan Magistrate. As Officers of the Court, theAdvocates can perform their duty more effectively than theOfficers, subordinate to the Chief Metropolitan Magistrate in takingpossession of assets and documents and in delivering the same tothe Secured Creditor. Thus, in any event, the contention raised bythe learned counsel appearing for the petitioner is devoid of merits.”

13. The issue also received attention of the High Court of Delhi inRahul Chaudhary[33]. The High Court answered the issue in the followingwords:

“3.1 To be noted, the receiver has been appointed by the learnedCMM vide order dated 05.12.2019.

4. The learned CMM has appointed an advocate to takepossession of the secured asset.

5. Counsel for the petitioner does not dispute that fact that thereceiver appointed by the learned CMM has taken possession ofthe subject secured asset on 16.01.2020.

6. It is, however, the say of the counsel for the petitioner thatappointment of an advocate as a receiver was contrary to theprovisions of Section 14 (1A) of the SARFAESI Act and, therefore,that part of the order passed by the learned CMM should be setaside as was done by the Bombay High Court in theaforementioned matter.

7. To my mind, the writ petition, in fact, has been renderedinfructuous, in a sense, that the receiver would have handed overthe possession of the subject asset to the secured creditor, that is,the Andhra Bank.

8. Nevertheless, according to me, the language of Section 14(1A)of the SARFAESI Act uses the expression “may” and not “shall”.

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SUPREME COURT REPORTS

A8.1 There are two ways of appreciating the provision. First, thatthe expression “may” relates to the choice of the subordinateofficer. The other meaning that can be placed on the provision isthat District Magistrate/CMM is vested with discretion to appointofficers subordinate to him to take possession of the secured asset.

B8.2 The District Magistrate/CMM is obliged to take possessiononce an application in that behalf is preferred under sub-section(1) of Section 14 of the SARFAESI Act by the secured creditor.

8.3 It is in the exercise of such power that recourse can be takenby the District Magistrate/CMM to the provisions of sub-sectionC(1A) of Section 14. This provision was introduced via Act 1 of2013. Before that the District Magistrate/CMM were perhapstaking recourse to sub-section (2) of Section 14 and, thus, appointingadvocates as receiver.

8.4 To my mind, after the insertion of sub-section (1A) in Section14, the only change that has been brought about is that the DistrictDMagistrate/CMM has now the discretion to appoint even theirsubordinate officers as receivers.

8.5 Pertinently, sub-section (1A) of Section 14 does not barthe appointment of advocates as receivers. The same positionobtains vis-à-vis Rule 8(3) of The Security Interest (Enforcement)ERules, 2002, which has been cited in the aforementioned judgmentof the Bombay High Court.

9. As was noticed in Subir Chakravarty’s case[34], the DistrictMagistrates and the CMMs are overburdened. The position is nodifferent in Delhi.

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10. Thus, in my view, since the provision vests discretion in theDistrict Magistrate/CMM and as long the discretion is exercisedwith due care and caution, the appointment of advocates asreceivers cannot be faulted.”

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As noticed from the extracted portion of the judgment, the HighCourt of Delhi disagreed with the view taken by the Bombay High Courtin the impugned judgment which has been assailed in the cases underconsideration.

H34 see Footnote No.17

14. Concededly, there is conflict of opinion between the threeHigh Courts[35] on the one side and the Bombay High Court on the other.In the impugned judgment, the Bombay High Court observed as follows:

“9 The language of the legislature is clear. The District Magistrateor the Chief Metropolitan Magistrate may authorize any officersubordinate to take possession of such asset and this means thatthe person authorized to take possession has to be an officersubordinate to the District Magistrate or the Chief MetropolitanMagistrate.

10 The decision dated 17[th] March 2017[36] passed by the DivisionBench was not premised on a challenge to the authorization infavour of an Advocate to take possession of a secured asset. Theobservations at the end of the order are probably the result of thefacts noted in the impugned order. The overburdened MetropolitanMagistrates or the District Magistrates having inadequatesubordinate staff find it a handicap to deal with large number ofapplications under Section 14 of the SARFAESI Act, 2002, butthis would be no ground to violate the language of the statute. Thelegislature may be requested to intervene. We propose to do thatat the end of the present order.

11 …..

12 A perusal of the sub-rule[37] shows that after possession ofimmovable property is physically taken over by the Officerauthorized custody thereof can be handed over for care andprotection of the property to any person authorized or appointedby him. Thus, after possession of a secured asset is taken over, itscustody can be entrusted to any person who need not be an Officerof the Court or authorized subordinate staff of the Court. Thiscould perhaps solve half the problem faced by District Magistratesand Chief Metropolitan Magistrates.

13 The cry of anguish in paragraph No.7 of the impugned order isalso justified. Each day, atleast two, if not three petitions, are filedby way of mercy pleading to this Court that some time be given tothe defaulting borrower to clear the defaulting loan so that theproperty mortgaged can be saved. Wide and varied facts such as 35 High Courts of Kerala, Madras and Delhi

37 Rule 8(3) of the Security Interest (Enforcement) Rules, 2002

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exams of the children are ensuing, old and aged parents, paternalor maternal aunt are suffering from an ailment and are undergoing treatment at a nearby hospital are pleaded. The borrower ismaking attempts to sell another property to clear the outstandingamounts etc. Equities are pleaded.

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B14 Courts in India being not only Courts of Justice but Courts ofEquity, the orders passed under Section 14 are stayed, butultimately the petitions fail.

15 Howsoever inconvenient it may be to a Court, rights of partiescannot be curtailed in the manner done in the impugned order. IfClaw permits, the borrower can always tender the outstandingamounts to the Bank or the Financial Institution before a sale ofthe secured assets take place.

16 The two troubling parts of the impugned order being dealt withby us resulting in the hurdle in the way of the petitioner to seekfurther reliefs from the Debt Recovery Tribunal having been clear,Dwe dispose of the petition expunging the directions in paragraphNo.7 of the impugned order, as also expunging the authorizationin favour of Ms.Priti S. Chavan, Advocate to take possession ofthe Security as a Court Commissioner requiring the learnedMetropolitan Magistrate to appoint an officer subordinate to takeEpossession of the secured asset who, in turn may give custodythereof to any person.

16 We terminate the proceedings in the instant writ petitionobserving that on the merits of the order passed, the petitionersmay approach the Debt Recovery Tribunal.”FThe above view taken by the Bombay High Court is one of strictor literal interpretation of the provision as it exists.

15. At the outset, we must notice that the expression “any officersubordinate to him” has been used in several legislations[38] enacted by G38 Section 14 of the Suppression of Immoral Traffic in Women and Girls Act, 1956;Section 5 of the Orphanages and other Charitable Homes (Supervision and Control)Act, 1960; Section 166 of the Manipur Land Revenue and Land Reforms Act, 1960;Section 10K of the Export (Quality Control and Inspection) Act, 1963; Section 43A ofthe Unlawful Activities (Prevention) Act, 1967; Section 5 of the Wild Life (Protection)Act, 1972; Sections 55 and 165 of the Code of Criminal Procedure, 1973; Sections 64and 70 of the Delhi Police Act, 1978; Section 41 of the Narcotic Drugs and PsychotropicHSubstances Act, 1985; Sections 11 and 16 of the Foreign Trade (Development and Parliament/State Legislature. Somewhat similar expression has been usedin Articles 53, 154 and 311 of the Constitution of India and in otherlegislations[39 ]enacted by Parliament/State Legislature with little variationto further the intent of the concerned enactment.

Regulation) Act, 1992; Section 44 of the Delhi Rent Act, 1995 (also in 1958); Section 22of the Chemical Weapons Convention Act, 2000; Section 17 of the Prevention ofMoney-Laundering Act, 2002; Section 30 of the Food Safety and Standards Act, 2006;Sections 107, 108 and 112 of the Central Goods and Services Tax Act, 2017; Section 8of the Fugitive Economic Offenders Act, 2018; and Section 31 of the Banning ofUnregulated Deposit Schemes Act, 2019.

39 Article 53 (“officers subordinate to him”), Article 154 (“officers subordinate to him”and “any authority subordinate to the Governor”) and Article 311 (“an authoritysubordinate to that”) of the Constitution of India; Section 376 (“police officer subordinate to such police officer”) of the Indian PenalCode, 1860; Section 2 (“members of the subordinate ranks of any police-force”) and Section 7 (“any

police-officer of the subordinate ranks”) of the Police Act, 1861; Section 4A (“any such officer subordinate to him”) of the Guardians and Wards Act,1890; Section 3(5) (“Officer subordinate to the Governor General of India”) of the GeneralClauses Act, 1897; Sections 8 and 22 (“officers subordinate to the Jailer”) and Section 48 (“officersubordinate to the Superintendent”) of the Prisons Act, 1894;Section 195 (“any officer subordinate to the Collector”) of the Indian Succession Act,1925; Section 34H (“any subordinate officer of his”), and Sections 110A and 110B (“anyperson subordinate to him”) of the Insurance Act, 1938; Section 2(a) (“any officer subordinate to that officer”) of the Indian Coconut CommitteeAct, 1944; Section 14A (“such officer or authority subordinate to the Central Government” and“such officer or authority subordinate to the State Government”) of the IndustrialEmployment (Standing Orders) Act, 1946; Section 39 (“authority subordinate to the Central Government” and “authoritysubordinate to the State Government”) of the Industrial Disputes Act, 1947; Section 2(g) (“subordinate officer”) of the Central Reserve Police Force Act, 1949; Section 47 (“his subordinate in rank”) of the Army Act, 1950; Section 17 (“by an officer subordinate to that Government” and “by an officersubordinate to the State Government”) and Section 23 (“by an officer or authoritysubordinate to that Government”) of the Requisitioning and Acquisition of ImmovableProperty Act, 1952; Sections 24A and 24B (“any such officer subordinate to the Central Government or aState Government”) and Section 43 (“such officer or authority subordinate to theCentral Government” and “such officer or authority subordinate to the StateGovernment”) of the Arms Act, 1959; Section 56 (“an officer subordinate to the Administrator”) of the Children Act, 1960; A

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A16. The construct of the provision, however, must depend on thecontext of the legislative intent and the purpose for which suchdispensation has been envisaged. The setting in which the expressionhas been used in the concerned section of the Act would assumesignificance.BSection 5 (“the officers subordinate to him”), Section 7 (“subordinate to theAdministrator and subordinate to the deputy commissioner or the sub-divisionalofficer”), Section 68 (“subordinate to such officer”), Section 84 (“any revenue officersubordinate to him”), Section 93 (“an officer subordinate to the sub-divisional officer”),Section 95 (“any revenue officer subordinate to him”), Section 96 (“revenue officersubordinate to the deputy commissioner” and “any officer subordinate to the appellateCor revisional authority”) and Section 166 (“any officer or authority subordinate tohim”) of the Manipur Land Revenue and Land Reforms Act, 1960; Section 5 (“any other officer of customs who is subordinate to him”), Section 28J (“thecustoms authorities subordinate to him”), Section 129D (“adjudicating authoritysubordinate to him” and “any officer of Customs subordinate to him”) and Section129DA (“adjudicating authority subordinate to him”) of the Customs Act, 1962; Section 10M (“any officer subordinate to the Director of Inspection and QualityDControl”) and Section 13 (“authority subordinate to the Central Government”) of theExport (Quality Control and Inspection) Act, 1963; Section 79 (“any officer subordinate to the Board”) of the Punjab Reorganisation Act,1966; Section 42 (“any person subordinate to the State Government”) of the UnlawfulActivities (Prevention) Act, 1967;

ESection 21 (“authority subordinate to the Central Government” and “authoritysubordinate to such Government”) of the Passports Act, 1967;Section 34 (“any officer subordinate to it”) and Section 154 (“any police officersubordinate to him”) of the Code of Criminal Procedure, 1973; Section 12 (“an officer subordinate to that Government” and “an officer subordinate toa State Government”) of the Conservation of Foreign Exchange and Prevention ofSmuggling Activities Act, 1974;FSection 3 (“subordinate ranks of the police force”), Section 12 (“other officers ofsubordinate rank”), Section 20 (“his subordinates”), Sections 21 and 25 (“any policeofficer of subordinate rank”), Section 58 (“officers subordinate to him”), Section 70(“any officer subordinate to the Commissioner of Police”), Section 122 (“police officerof subordinate rank”) and Section 147 (“any police officer of subordinate rank”) of theDelhi Police Act, 1978; Section 14 (“to which that officer is subordinate”) of the National Security Act, 1980;GSection 23 (“an Income-tax Officer subordinate to him”) of the Hotel-Receipts Tax Act,1980; Section 17A (“the officer, subordinate to him”) of the Child and Adolescent Labour(Prohibition and Regulation) Act, 1986; Section 13 (“an officer subordinate to that Government”) of the Prevention of IllicitTraffic in Narcotic Drugs and Psychotropic Substances Act, 1988;Section 93 (“by an officer or authority subordinate to the Central Government”) of theHRailways Act, 1989;

17. This Court has had occasion to deal with identical provision inthe Motor Vehicles Act, 1939[40], in the case of A. St. ArunachalamPillai vs. M/s. Southern Roadways Ltd. & Anr.[41]. Even in that case,the Court had to resolve the conflicting views of the Full Bench of theMadras High Court and of the High Court of Andhra Pradesh. The FullBench of the Madras High Court in S. Krishnaswamy Mudaliar &Anr. vs. P.S. Palani Pillai & Anr.[42]had occasion to consider the questionas to whether Regional Transport Officer was subordinate to the StateTransport Commissioner. While examining that question, the Full Benchof the Madras High Court dealt with three views pressed into servicebefore it. The first view was founded on “administrative subordination”, Section 6 (“such other officer subordinate to the Director General”) and Section 15 (“anofficer subordinate to the Director General”) of the Foreign Trade (Development andRegulation) Act, 1992; Sections 46 and 328 (“an officer subordinate to him”) of the New Delhi MunicipalCouncil Act, 1994; Sections 23 and 24 (“any such subordinate officer to the enforcement officer”) andSection 37 (“any subordinate officer”) of the Chemical Weapons Convention Act,2000; Section 80 (“any officer subordinate to the Board”) of the Bihar Reorganisation Act,2000; Section 81 (“any officer subordinate to the Board”) of the Uttar Pradesh ReorganisationAct, 2000; Section 26 (“such officer subordinate to the Central Government or the StateGovernment”) of the Mahatma Gandhi National Rural Employment Guarantee Act,2005; Section 22 (“the officer, subordinate to him”) of the Maintenance and Welfare ofParents and Senior Citizens Act, 2007; Section 54 (“such officer subordinate to it”) of the Legal Metrology Act, 2009; Section 43 (“employees who shall be subordinate to him”) of the Right to FairCompensation and Transparency in Land Acquisition, Rehabilitation and ResettlementAct, 2013; Section 86 (“any officer subordinate to the Board”) of the Andhra Pradesh ReorganisationAct, 2014; Section 5 (“any other officer who is subordinate to him”) of the Central Goods andServices Tax Act, 2017;

Section 45 (“an officer subordinate to that Government or the local authority”) of theHuman Immunodeficiency Virus and Acquired Immune Deficiency Syndrome(Prevention and Control) Act, 2017; Section 100 (“authority subordinate to the Central Government” and “authoritysubordinate to the State Government”) of the Industrial Relations Code, 2020.40 for short, “1939 Act”41 AIR 1960 SC 1191 (5-Judge Bench)42 AIR 1957 Mad 599

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Athe second on “functional subordination” and the third on “statutorysubordination”. The Full Bench accepted the third view, namely, “statutorysubordination”, being a safer and logical approach. In the context of theprovisions of that Act, it was held that the Regional Transport Officerwas not subordinate to the State Transport Commissioner.

B18. Analysing the same provision, being Section 44-A of the 1939Act, the Full Bench of the High Court of Andhra Pradesh, however,opined to the contrary in B. Veeraswamy & Ors. vs. State of AndhraPradesh & Ors.[43]. It followed the root of “administrative subordination”.The matter reached this Court where the Constitution Bench by majorityupheld the view taken by the Full Bench of the High Court of AndhraCPradesh and, thus, invoked the “administrative subordination” logic. ThisCourt in the context of the statutory provisions and the GovernmentOrders issued by the concerned department concluded that the RegionalTransport Officers were subordinate to the Transport Commissioner. Itwas also observed that in the matter of interpretation, the words ofDprovisions must be looked at; and if they are expansive enough to meanany officer subordinate to the Transport Commissioner, that must begiven effect to.

19. As aforesaid, while considering the purport of the expressionin Section 14(1A) of the 2002 Act, it must be noticed that the saidEprovision was inserted vide Act 1 of 2013 with effect from 15.1.2013. Inabsence of express provision, such as sub-Section (1A) under theunamended Act, the CMM/DM could take possession of secured assetson a written application made by the secured creditor under Section14(1); and while doing so in terms of Section 14(2) of the 2002 Act, itwas open to the CMM/DM to take or cause to be taken such steps andFuse, or cause to be used, such force, as may, in his opinion be necessary.This would include taking assistance of the local Police to obviate anyuntoward situation or law and order problem at the site while taking overpossession. While construing that provision as early as in 2008, the HighCourt of Kerala in the case of Muhammed Ashraf[44]gave expansiveGmeaning to the rule that it was open to the CMM/DM to take assistanceof an advocate to be appointed as a commissioner for taking possessionof the secured assets and documents relating thereto for being handedover or forwarded to the secured creditor. It was an inherent or implicit 43 AIR 1959 AP 413H44 supra at Footnote No.8

43 AIR 1959 AP 413H44 supra at Footnote No.8

power vested in the stated authority and more particularly becauseadvocates were no less than officers of the court of the CMM/DM.This view has been consistently followed not only by the High Court ofKerala, but also by other High Courts such as High Courts of Madrasand Delhi. Most of the CMMs/DMs across the country have beenfollowing that dispensation. The only discordant note can be discernedfrom the decision of the Bombay High Court which is impugned beforeus. The Bombay High Court has followed the strict and literalinterpretation rule and, thus, preferred “statutory subordination” logic.The view so taken can be sustained only if we were to hold that legislativeintent in using the expression “any officer subordinate to him” completelyrules out the other option which is being followed since commencementof the Act in 2002.

20. Indeed, in the case of advocate, the logic of “administrativesubordination” or “statutory subordination” cannot be extended. Inasmuchas, for being a case of “statutory subordination”, the provisions of the2002 Act and the Security Interest (Enforcement) Rules, 2002[45] madethereunder, must expressly provide for such mechanism. This cannot besaid about the provisions of the 2002 Act and the Rules made thereunder.Even the logic of “administrative subordination” as considered by thisCourt in A. St. Arunachalam Pillai[46] cannot be invoked. For, theadvocate by no stretch of imagination can fit into the administrative setup of the Office of the CMM/DM.

21. That leaves us with the third possibility of “functionalsubordination”. For invoking that logic, we must necessarily concludethat the provisions under consideration are wide enough and expansiveto encompass engaging services of Advocate Commissioner. For thatpurpose, we must first advert to the Statement of Objects and Reasonsfor which the 2002 Act has been enacted. The same reads thus:

“STATEMENT OF OBJECTS AND REASONS

The financial sector has been one of the key drivers in India’sefforts to achieve success in rapidly developing its economy. Whilethe banking industry in India is progressively complying with theinternational prudential norms and accounting practices there arecertain areas in which the banking and financial sector do not 45 for short, “2002 Rules”

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Ahave a level playing field as compared to other participants in thefinancial markets in the world. There is no legal provision forfacilitating securitisation of financial assets of banks andfinancial institutions. Further, unlike international banks,the banks and financial institutions in India do not havepower to take possession of securities and sell them. OurBexisting legal framework relating to commercialtransactions has not kept pace with the changingcommercial practices and financial sector reforms. This hasresulted in slow pace of recovery of defaulting loans andmounting levels of non-performing assets of banks andCfinancial institutions. Narasimham Committee I and II andAndhyarujina Committee constituted by the Central Governmentfor the purpose of examining banking sector reforms haveconsidered the need for changes in the legal system in respect ofthese areas. These Committees, inter alia, have suggestedenactment of a new legislation for securitisation and empoweringDbanks and financial institutions to take possession of the securitiesand to sell them without the intervention of the court. Acting onthese suggestions, the Securitisation and Reconstruction ofFinancial Assets and Enforcement of Security Interest Ordinance,2002 was promulgated on the 21st June, 2002 to regulateEsecuritisation and reconstruction of financial assets andenforcement of security interest and for matters connectedtherewith or incidental thereto. The provisions of the Ordinancewould enable banks and financial institutions to realise long-term assets, manage problem of liquidity, asset liabilitymismatches and improve recovery by exercising powersFto take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery orreconstruction.”

22. The underlying purpose of the 2002 Act is to empower theGfinancial institutions in India to have similar powers as enjoyed by theircounterparts, namely, international banks in other countries. One suchfeature is to empower the financial institutions to take possession ofsecurities and sell them. The same has been translated into provisionsfalling under Chapter III of the 2002 Act. Section 13 deals withHenforcement of security interest. Sub-Section (4) thereof envisages that in the event a default is committed by the borrower in discharging hisliability in full within the period specified in sub-Section (2), the securedcreditor may take recourse to one or more of the measures provided insub-Section (4). One of the measures is to take possession of the securedassets of the borrower including the right to transfer by way of lease,assignment or sale for realising the secured asset. That, they could dothrough their “authorised officer” as defined in Rule 2(a)[47] of the 2002Rules.

23. After taking over possession of the secured assets, furthersteps to lease, assign or sale the same could also be taken by the securedcreditor. However, Section 14 of the 2002 Act predicates that if thesecured creditor intends to take possession of the secured assets, mustapproach the CMM/DM by way of an application, in writing, and onreceipt of such request, the CMM/DM must move into action in rightearnest. After passing an order thereon, he/she (CMM/DM) mustproceed to take possession of the secured assets and documents relatingthereto for being forwarded to the secured creditor in terms of Section14(1) read with Section 14(2) of the 2002 Act. As noted earlier, Section14(2) is an enabling provision and permits the CMM/DM to take suchsteps and use force, as may, in his opinion, be necessary. This positionobtained even before the amendment of 2013 i.e., insertion of sub-Section(1A) and continues to this date.

24. Incidentally, it needs to be noted that along with insertion ofsub-Section (1A), a proviso has also been inserted in sub-Section (1) ofSection 14 of the 2002 Act whereby the secured creditor (Bank/FinancialInstitution) is now required to comply certain conditions and to disclosethat by way of an application accompanied by affidavit duly affirmed byits authorised officer in that regard. Sub-Section (1A) is in the nature ofan explanatory provision and it merely restates the implicit power of theCMM/DM in taking services of any officer subordinate to him. Theinsertion of sub-Section (1A) is not to invest a new power for the firsttime in the CMM/DM as such.

47 2. Definitions.—In these rules, unless the context otherwise requires,— (a)“authorised officer” means an officer not less than a chief manager of a public sectorbank or equivalent, as specified by the Board of Directors or Board of Trustees of thesecured creditor or any other person or authority exercising powers of superintendence,direction and control of the business or affairs of the secured creditor, as the case maybe, to exercise the rights of a secured creditor under the Act; A

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A25. Thus understood, the question is: whether the past practicefollowed by most of the courts across the country in recognising thepower of the CMM/DM to appoint an advocate as a commissioner toassist him in merely taking possession of the secured assets and documentsrelating thereto and to forward the same to the secured creditor, needsto be discontinued as being prohibited owing to insertion of sub-SectionB(1A)? Section 14 of the 2002 Act, as amended and applicable to thecases on hand, reads thus:

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“14. Chief Metropolitan Magistrate or District Magistrateto assist secured creditor in taking possession of securedasset.—(1) Where the possession of any secured assets isrequired to be taken by the secured creditor or if any of the securedassets is required to be sold or transferred by the secured creditorunder the provisions of this Act, the secured creditor may, for thepurpose of taking possession or control of any such secured assets,request, in writing, the Chief Metropolitan Magistrate or the DistrictMagistrate within whose jurisdiction any such secured asset orother documents relating thereto may be situated or found, to takepossession thereof, and the Chief Metropolitan Magistrate or, asthe case may be, the District Magistrate shall, on such requestbeing made to him—

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(a) take possession of such asset and documents relatingthereto; and (b) forward such asset and documents to the securedcreditor:

Provided that any application by the secured creditor shallbe accompanied by an affidavit duly affirmed by the authorisedofficer of the secured creditor, declaring that—

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(i) the aggregate amount of financial assistance grantedand the total claim of the Bank as on the date of filing theapplication; G

(ii) the borrower has created security interest over variousproperties and that the Bank or Financial Institution is holdinga valid and subsisting security interest over such propertiesand the claim of the Bank or Financial Institution is withinthe limitation period; H

(iii) the borrower has created security interest over variousproperties giving the details of properties referred to in sub-clause (ii) above;

(iv) the borrower has committed default in repayment ofthe financial assistance granted aggregating the specifiedamount;

(v) consequent upon such default in repayment of thefinancial assistance the account of the borrower has beenclassified as a non-performing asset;

(vi) affirming that the period of sixty days notice as requiredby the provisions of sub-section (2) of section 13, demandingpayment of the defaulted financial assistance has beenserved on the borrower;

(vii) the objection or representation in reply to the noticereceived from the borrower has been considered by thesecured creditor and reasons for non-acceptance of suchobjection or representation had been communicated to theborrower;

(viii) the borrower has not made any repayment of thefinancial assistance in spite of the above notice and theAuthorised Officer is, therefore, entitled to take possessionof the secured assets under the provisions of sub-section(4) of section 13 read with section 14 of the principal Act;

(ix) that the provisions of this Act and the rules madethereunder had been complied with:

Provided further that on receipt of the affidavit from theAuthorised Officer, the District Magistrate or the Chief MetropolitanMagistrate, as the case may be, shall after satisfying the contentsof the affidavit pass suitable orders for the purpose of takingpossession of the secured assets within a period of thirty daysfrom the date of application:

Provided also that if no order is passed by the ChiefMetropolitan Magistrate or District Magistrate within the saidperiod of thirty days for reasons beyond his control, he may, afterrecording reasons in writing for the same, pass the order withinsuch further period but not exceeding in aggregate sixty days.

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Provided also that the requirement of filing affidavit statedin the first proviso shall not apply to proceeding pending beforeany District Magistrate or the Chief Metropolitan Magistrate, asthe case may be, on the date of commencement of this Act.

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(1A) The District Magistrate or the Chief MetropolitanMagistrate may authorise any officer subordinate to him,—

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(i) to take possession of such assets and documentsrelating thereto; and

(ii) to forward such assets and documents to thesecured creditor.

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(2) For the purpose of securing compliance with the provisions ofsub-section (1), the Chief Metropolitan Magistrate or the DistrictMagistrate may take or cause to be taken such steps and use, orcause to be used, such force, as may, in his opinion, be necessary.

(3) No act of the Chief Metropolitan Magistrate or the DistrictDMagistrate any officer authorised by the Chief MetropolitanMagistrate or District Magistrate done in pursuance of this sectionshall be called in question in any court or before any authority.”

E26. Considering the scheme of the 2002 Act, it is explicit andcrystal clear that possession of the secured assets can be taken by thesecured creditor before confirmation of sale of the secured assets aswell as post-confirmation of sale. For taking possession of the securedassets, that could be done by the “authorised officer” of the Bank asnoted in Rule 8 of the 2002 Rules, which reads thus:

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“8. Sale of immovable secured assets.—(1) Where the securedasset is an immovable property, the authorised officer shall takeor cause to be taken possession, by delivering a possession noticeprepared as nearly as possible in Appendix IV to these rules, tothe borrower and by affixing the possession notice on the outerGdoor or at such conspicuous place of the property.

(2) The possession notice as referred to in sub-rule (1) shall alsobe published, as soon as possible but in any case not later thanseven days from the date of taking possession, in two leadingnewspapers, one in vernacular language having sufficientcirculation in that locality, by the authorised officer.

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(2-A) All notices under these rules may also be served upon theborrower through electronic mode of service, in addition to themodes prescribed under sub-rule (1) and sub-rule (2) of rule 8.

(3) In the event of possession of immovable property is actuallytaken by the authorised officer, such property shall be kept in hisown custody or in the custody of any person authorised orappointed by him, who shall take as much care of the property inhis custody as a owner of ordinary prudence would, under thesimilar circumstances, take of such property.

(4) The authorised officer shall take steps for preservation andprotection of secured assets and insure them, if necessary, tillthey are sold or otherwise disposed of.

(5) Before effecting sale of the immovable property referred to insub-rule (1) of rule 9, the authorised officer shall obtain valuationof the property from an approved valuer and in consultation withthe secured creditor, fix the reserve price of the property andmay sell the whole or any part of such immovable secured assetby any of the following methods:—

(a) by obtaining quotations from the persons dealing withsimilar secured assets or otherwise interested in buying thesuch assets; or (b) by inviting tenders from the public;

(c) by holding public auction including through e-auctionmode; or (d) by private treaty.

Provided that in case of sale of immovable property in theState of Jammu and Kashmir, the provisions of Jammu andKashmir Transfer of Property Act, 1977 shall apply to the personwho acquires such property in the State.

(6) the authorised officer shall serve to the borrower a notice ofthirty days for sale of the immovable secured assets, under sub-rule (5):

Provided that if the sale of such secured asset is beingeffected by either inviting tenders from the public or by holdingpublic auction, the secured creditor shall cause a public notice in AB

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the Form given in Appendix IV-A to be published in two leadingnewspapers including one in vernacular language having widecirculation in the locality.

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(7) every notice of sale shall be affixed on the conspicuous partof the immovable property and the authorised officer shall uploadBthe detailed terms and conditions of the sale, on the web-site ofthe secured creditor, which shall include; (a) the description of the immovable property to be sold,including the details of the encumbrances known to thesecured creditor; (b) the secured debt for recovery of which the property isto be sold; C

(c) reserve price of the immovable secured assets belowwhich the property may not be sold; (d) time and place of public auction or the time after whichDsale by any other mode shall be completed;

(e) deposit of earnest money as may be stipulated by thesecured creditor; (f) any other terms and conditions, which the authorizedofficer considers it necessary for a purchaser to know theEnature and value of the property.

(8) Sale by any methods other than public auction or public tender,shall be on such terms as may be settled between the securedcreditor and the proposed purchaser in writing.”

27. However, for taking physical possession of the secured assetsFin terms of Section 14(1) of the 2002 Act, as aforementioned, the securedcreditor is obliged to approach the CMM/DM by way of a writtenapplication requesting for taking possession of the secured assets anddocuments relating thereto and for being forwarded to it (secured creditor)for further action.

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28. The statutory obligation enjoined upon the CMM/DM is toimmediately move into action after receipt of a written application underSection 14(1) of the 2002 Act from the secured creditor for that purpose.As soon as such application is received, the CMM/DM is expected topass an order after verification of compliance of all formalities by thesecured creditor referred to in the proviso in Section 14(1) of the 2002H

Act and after being satisfied in that regard, to take possession of thesecured assets and documents relating thereto and to forward the sameto the secured creditor at the earliest opportunity. The latter is a ministerialact. It cannot brook delay. Time is of the essence. This is the spirit of thespecial enactment. However, it is common knowledge that the CMM/DM are provided with limited resources. That inevitably makes it difficult,if not impossible, for the CMM/DM to fulfil his/her obligations with utmostdispatch to uphold the spirit of the special legislation.

29. It is common knowledge that in the respective jurisdictions,there is only one CMM/DM. If he is expected to reach at every locationhimself for taking possession, in some jurisdictions it would beimpracticable, if not impossible, for him to do so owing to large numberof applications in the given jurisdiction being a commercial city.Accordingly, strict construct would defeat the legislative intent andpurpose for enacting the 2002 Act. Indeed, logistical problems of theOffice of the CMM/DM cannot be the basis to overlook the statutoryprovision. However, we are persuaded to take the view that an advocateis and must be regarded as an officer of the court and subordinate to theCMM/DM for the purposes of Section 14(1A) of the 2002 Act.

30. Furthermore, as was the situation obtaining before insertionof sub-Section (1A) wherein the CMM/DM could avail the services ofan advocate or any officer subordinate to him for discharging theministerial work of taking possession of the secured assets and documentsrelating thereto, nothing prevents him/her from continuing to follow thesame regime even after the insertion of sub-Section (1A). At the sametime, while entrusting the act of taking possession of the secured assetsconsequent to the order passed under Section 14(1) of the 2002 Act toany officer subordinate to him, the CMM/DM ought to exercise prudencein appointing such person who will be capable of executing the orderspassed by him. Merely because he has power to appoint “any” officersubordinate to him, it would not permit him to appoint a peon or clerk,who is incapable of handling the situation.

31. Be that as it may, the expression “any” in section has not beendefined in the 2002 Act or the 2002 Rules. So also, the expressions“officer” and “subordinate” are not defined singularly or collectively.The meaning of expression “any” as given in Black’s Law Dictionary[48]reads thus:

48 6th Edition

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A“Any. Some; one out of many; an indefinite number. Oneindiscriminately of whatever kind or quantity. Federal Deposit Ins.Corporation v. Winton, C.C.A. Tenn., 131 F.2d 780, 782. One orsome (indefinitely). Slegel v. Slegel, 135 N.J.Eq. 5, 37 A.2d 57,58. “Any” does not necessarily mean only one person, but mayhave reference to more than one or to many. Doherty v. King,BTex.Civ.App., 183 S.W.2d 1004, 1007.

Word “any” has a diversity of meaning and may be employedto indicate “all” or “every” as well as “some” or “one”and its meaning in a given statute depends upon the contextand the subject matter of the statute. Donohue v. Zoning Bd.Cof Appeals of Town of Norwalk, 155 Conn. 550, 235 A.2d 643,646, 647.

It is often synonymous with “either”, “every” or “all”. Itsgenerality may be restricted by the context; thus, the givingof a right to do some act “at any time” is commonly construed asDmeaning within a reasonable time; and the words “any other”following the enumeration of particular classes are to be read as“other such like,” and include only others of like kind or character.”

32. The expression “officer” as defined in the Black’s LawEDictionary[49] reads thus:

“officer. (14c) 1.Someone who holds an office of trust,authority, or command. • In public affairs, the term refers esp.to a person holding public office under a national, state, or localgovernment, and authorized by that government to exercise someFspecific function. In corporate law, the term refers esp. to a personelected or appointed by the board of directors to manage the dailyoperations of a corporation, such as a CEO, president, secretary,or treasurer. Cf. DIRECTOR (2).

33. The expression “subordinate” as given in P. Ramanatha Aiyar’sGAdvanced Law Lexicon[50] reads thus:

“Subordinate” defined. Act 24, 1859, section 1; Mad Act 3, 1909,section 2.

49 11th EditionH50 Volume 4 (6th Edition)

Belonging to an inferior rank, grade, class or order; dependentupon the authority or power of another [Section 121, IndianEvidence Act (1 of 1872)]; a person or thing that is ranked lower.

By the use of the word ‘subordinate’ without any qualifyingwords, the legislature has expressed its legislativeintention of making punishable such subordinates also whohave no connection with the functions with which thebusiness or transaction is concerned. An Assistant Controllerof Imports in the office of the Joint Chief Controller of Importsand Exports is a subordinate of the joint Chief Controller throughthe acceptance of the bribe has nothing to do with the appealpending before the Joint Chief Controller. R.G. Jacob v Republicof India, AIR 1963 SC 550, 553. [Indian Penal Code (45 of 1860),section 165 (omitted by Prevention of Corruption Act, 1988)]

The construction placed on the expression ‘subordinate’ occurringin Rule 14(2) of the Rules is in consonance with the meaning andimport of the word ‘subordinate’ occurring in Article 311(1) of theConstitution. There is nothing in the Constitution which debarsthe Government from exercising the power of appointing authorityto dismiss a Government servant from service. These Rules cannotbe read as implying that dismissal must be by the very authoritywho made the appointment or by his immediate superior. There isa compliance with Article 311(1) if the dismissing authority is notlower in rank or grade than the appointing authority. [Govt. ofA.P. v N. Ramanaiah, (2009) 7 SCC 165, 172, paras 23, 24][Constitution of India, Article 311(1); A.P. Civil Services (CCA)Rules, 1991, rule 14(2)]

The word ‘subordinate’ in section (2)(f) means subordinate inlaw and not in fact. Although a person looking after the businessof another person as manager, may not in fact be subordinate tothe other person and may be acting on his own initiative, yet if, asan individual manager, he is in law subordinate to the employer,namely, the other person, he cannot be regarded as the “managingagent” of employer as defined in section 2(1)(f), and no order ofcompensation can be made against him. Raghunath Sahai vSarup Singh, MLJ : QD (1961-1965) Vol V C1952-1953 : 1962All LJ 104 : 1962 All WR (HC) 91 : (1962) 1 LLJ 19 : (1961) 3Fac LR 445 : (1962-63) 23 FJR 624 : AIR 1962 All 620 [Workmen’sCompensation Act (8 of 1923), section 2(1)(f)]

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The word ‘subordinate’ also means judicial or quasi judicialadministrative subordination to the Director of consolidation. RamNarain v Director of Consolidation, AIR 1965 All 172, 173.[U.P. Consolidation of Holdings Act (5 of 1954), section 48 (asamended in 1963), section 48]

The provisions made in Section 133-A were already there whenSection 44-A was added to the Act by the Madras Act (XX of1948). The latter Act does not contain any separate definitionof the word “subordinate”. Naturally, no definition wasnecessary in view of the provision already made in Section 133-A. It must be assumed that the Madras Legislature was aware ofthe existence of Section 133-A when it introduced Section 44-A,and, when it used the word “subordinate” in that section, itmust have intended that the word “subordinate” should beunderstood only in the manner to determine which provisionhad already been made in Section 133-A of the Act. KrishnaSwamy Mudaliar v Palani Pillai, MLJ : QD (1956-1960) Vol.IVC151 : (S) AIR 1957 Mad 599 (FB). [Motor Vehicles Act (4 of1939), section 133-A]

The word ‘subordinate’ occurring in Article 311(1), has referenceto subordination in rank and not subordination in respect of powersand duties. Article 311(1) cannot be read as implying that the removalmust be by the very same authority who made the appointment orby his direct superior. It is enough that the removing authority is ofthe same rank of grade. Laxminarayana Sarangi v State of Orissa,MLJ : QD (1961-1965) Vol. II C1050 : AIR 1963 Orissa 8 : ILR(1962) Cut 492. [Constitution of India, Article 311(1)]

The word ‘subordinate’ in Article 311(1) Constitution of India,means subordination in rank and not subordination of function.Mahadev Prasad Roy v. S.N. Chatterjee, AIR 1954 Pat 285.

The word ‘subordinate’ in Article 311(1) of the Constitution ofIndia means subordinate in rank and not with reference to thefunctions exercised. Consequently when no officer of equal rankto the appointing officer is available then the order of dismissal orremoval will have to be passed by an officer of superior rank. Inno circumstances can such an order be passed by an officer oflesser rank. Any rule or statute which permits such an actionmust be held to be ultra vires as infringing the provisions of Article 311(1) of the Constitution. Gurmukh Singh v UOI, New Delhi,MLJ : QD (1961-1965) Vol.II C1050 : 65 Punj LR 964 : AIR 1963P&H 370

For the purposes of transfer applications of suits from the OriginalSide of the High Court the Judge sitting on the original side issubordinate to the appellate side of the High Court. (AIR 1923Rang. 22)”

34. The expression “officer subordinate” as defined inVenkataramaiya’s Law Lexicon & Legal Maxims[51] reads thus:

“”Officer subordinate.”— What is the exact purport of thecomponent words of the expression “any officer subordinate” usedin the Sec.44-A of the Motor Vehicles Act, 1939. “Any” is a wordwhich excludes limitation or qualification. It connotes widegenerality. Its use points to a distributive construction. Theword “any” is used in the sense of “any body”, “any person”.The individual who is invested with the authority and is required toperform the duties incidental to an office is an officer. Fordetermining whether officers are subordinate or not the testis not whether a review of such of their determinations asare quasi-judicial may be had, but whether in the performanceof their various duties they are subject to the direction andcontrol of a superior officer, or are independent officerssubject only to such directions as the statute gives.— B.Veeraswamy v. State of Andhra Pradesh, (1959) Andh. W.R.308at p.314: A.I.R. 1959 A.P. 413 (F.B.)”

35. The expressions “officer, subordinate” and “officerssubordinate to him” as given in P. Ramanatha Aiyar’s Advanced LawLexicon[52] read thus:

“Officer, subordinate. Officer belonging to an inferior rank,grade, class or order.

Officers subordinate to him. A Minister is an officer subordinateto the Governor. Shiv Bahadur Singh v State of Uttar Pradesh,AIR 1953 SC 394.”

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A36. As regards the procedure for taking possession of the securedassets, it can be discerned from Section 13 read with Section 14 of the2002 Act. Section 13(4) permits the secured creditor to take recourse toone or more of the specified measures; and to enable the secured creditorto do so even at the stage of pre-confirmation of sale; in terms of Section14, the CMM/DM has power in that regard albeit after passing orderBon a written application given by the secured creditor for that purpose.Once the order is passed, the statutory obligation cast upon the CMM/DM stands discharged to that extent. The next follow-up step is of takingpossession of the secured assets and documents relating thereto. Thesame is ministerial step. It could be taken by the CMM/DM himself/Cherself or through any officer subordinate to him/her, including theAdvocate Commissioner who is considered as an officer of his/her court.The Advocate Commissioner is not a new concept. The advocates areappointed as Court Commissioner to perform diverse administrative andministerial work as per the provisions of Code of Civil Procedure andCode of Criminal Procedure. An advocate is an officer of the court. ThisDhas been expounded in Virginia Law Review[53], in the following words:

“The duties of the lawyer to the Court spring directly fromthe relation that he sustains to the Court as an officer inthe administration of justice. The law is not a mere privatecalling but is a profession which has the distinction of beingEan integral part of the State’s judicial system. As an officerof the Court the lawyer is, therefore, bound to uphold the dignityand integrity of the Court; to exercise at all times respect for theCourt in both words and actions; to present all matters relating tohis client’s case openly, being careful to avoid any attempt to exertprivate influence upon either the judge or the jury; and to be frankFand candid in all dealings with the Court, “using no deceit, impositionor evasion,” as by misreciting witnesses or misquoting precedents.“It must always be understood,” says Mr. Christian Doerfler, inan address before the Milwaukee County Bar Association, inDecember, 1911, “that the profession of law is institutedGamong men for the purpose of aiding the administration ofjustice. A proper administration of justice does not mean that alawyer should succeed in winning a lawsuit. It means that heshould properly bring to the attention of the Courteverything by way of fact and law that is available and H53 Vol. 11, No.4 (Feb 1925) pp. 263-77

[A. M. KHANWILKAR, J.]

legitimate for the purpose of properly presenting his client’scase. His duty as far as his client is concerned is simply tolegitimately present his side of the case. His duty as far as thepublic is concerned and as far as he is an officer of the Courtis to aid and assist in the administration of justice.”

37. It would be useful to advert to the enunciation in Black’s LawDictionary[54] in respect of expression “amicus curiae” which reads thus:

“amicus curiae. [Latin “friend of the court”] (17C) Someonewho is not a party to a lawsuit but who petitions the court or isrequested by the court to file a brief in the action because thatperson has a strong interest in the subject matter.— Oftenshortened to amicus. — Also termed friend of the court. Pl.amici curiae”

38. Even this Court had occasion to expound about the role of theadvocate as being an officer of the court in Lalit Mohan Das vs. TheAdvocate-General, Orissa & Anr.[55]. The Constitution Bench observedthus:

“(11) ….. A member of the Bar undoubtedly owes a duty to hisclient and must place before the Court all that can fairly andreasonably be submitted on behalf of his client. He may evensubmit that a particular order is not correct and may ask for areview of that order. At the same time, a member of the Baris an officer of the Court and owes a duty to the Court inwhich he is appearing. He must uphold the dignity anddecorum of the Court and must not do anything to bringthe Court itself into disrepute. ….”

39. It is well established that an advocate is a guardian ofconstitutional morality and justice equally with the Judge. He has animportant duty as that of a Judge. He bears responsibility towards thesociety and is expected to act with utmost sincerity and commitment tothe cause of justice. He has a duty to the court first. As an officer of thecourt, he owes allegiance to a higher cause and cannot indulge inconsciously misstating the facts or for that matter conceal any material 54 11th Edition 55 AIR 1957 SC 250

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Afact within his knowledge. In the case of O.P. Sharma & Ors. vs. HighCourt of Punjab & Haryana[56], the Court noted that in all professionalfunctions, an advocate should be diligent and his conduct should conformto the requirements of the law by which he plays a vital role in thepreservation of society and justice system. As an officer of the court, he isunder a higher obligation to uphold the rule of law and justice system.B

40. Be it noted that Section 38 of the 2002 Act empowers theCentral Government to make rules for carrying out the provisions of the2002 Act. Sub-Section (2) thereof does not specifically/expressly referto power to make rule in respect of matter provided for in Section 14unlike other provisions noted therein. However, it is open to the CentralCGovernment to frame rules in that regard by invoking clause (g) of sub-Section (2) of Section 38. The same reads thus:

“38. Power of Central Government to make rules.—(1) ….(2) In particular, and without prejudice to the generality of theforegoing power, such rules may provide for all or any of theDfollowing matters, namely:—

(a) to (fc) …..

(g) any other matter which is required to be, or may be, prescribed,in respect of which provision is to be, or may be, made by rules.”

41. Pertinently, no such rule has been framed by the CentralEGovernment in reference to sub-Section (1A) of Section 14 of the 2002Act much less to expressly or by necessary implication prohibiting theCMM/DM to engage an Advocate Commissioner for taking possessionof the secured assets. In absence thereof, exclusion of engagement ofan advocate as commissioner cannot be countenanced.

42. Whereas, applying the “functional subordination” test, we areFpersuaded to take the view that sub-Section (1A) of Section 14 of the2002 Act is no impediment for the CMM/DM to engage services of anadvocate (an officer of the court) — only for taking possession of securedassets and documents relating thereto and to forward the same to thesecured creditor in furtherance of the orders passed by the CMM/DMGunder Section 14(1) of the 2002 Act in that regard. It does not follow thatthe advocate so appointed needs to be on the rolls in the Office of theCMM/DM or in public service. There is intrinsic de jure functionalsubordinate relationship between the CMM/DM and the advocate beingan officer of the court. The apprehension of the borrowers about improper execution of orders of the CMM/DM passed under Section 14(1) of the2002 Act by the Advocate Commissioner, is plainly misplaced. Further,being an officer of the court and appointed by the CMM/DM, the actsdone by the Advocate Commissioner would receive immunity under Section14(3) of the 2002 Act — as an officer authorised by the CMM/DM.There is no reason to assume that the advocate so appointed by the CMM/DM would misuse the task entrusted to him/her and that will not be carriedout strictly as per law or it would be a case of abuse of power. Rather,going by the institutional faith or trust reposed on advocates being officersof the court, there must be a presumption that if an advocate is appointedas commissioner for execution of the orders passed by the CMM/DMunder Section 14(1) of the 2002 Act, that responsibility and duty will bedischarged honestly and in accordance with rules of law.

43. For the view taken by us hitherto, the exposition in Satheedevivs. Prasanna & Anr.[57], M/s. Hiralal Rattanlal etc. etc. vs. State ofU.P. & Anr. etc. etc.[58], and Dipak Babaria & Anr. vs. State of Gujarat& Ors.[59], will be of no avail to the borrowers. In that, we have notinvoked the principle of casus omissus. In our view, in law, an advocateis an officer of the court and, thus, subordinate to the CMM/DM. Further,there is no indication in the 2002 Act or the Rules made thereunder toexclude such interpretation. For the same reason, the plea regardingapplying principle of ejusdem generis or noscitur a sociis and for thatmatter, expressio unius est exclusio alterius, also need not detain us.

44. The secured creditors would rely on the dictum of this Courtin Authorised Officer, Indian Bank vs. D. Visalakshi & Anr.[60]whereinthis Court upon considering the nature of activities of the Chief JudicialMagistrate[61] on the one hand and that of the CMM/DM on the other,held that the CJM is competent to process the request of the securedcreditor to take possession of the secured assets under Section 14 of the2002 Act. However, it is unnecessary to dilate on that decision consideringthe view taken hitherto that the advocate must be regarded as an officerof the court and, in law, subordinate to the concerned CMM/DM withintheir jurisdiction. This interpretation in applying “functional subordination”test, would further the legislative intent and the purpose for enacting the2002 Act. We hold that it would be open to the CMM/DM to appoint an 57 (2010) 5 SCC 622

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Aadvocate commissioner to assist him/her in execution of the order passedunder Section 14(1) of the 2002 Act.

45. A fortiori, the judgment and order of the Bombay High Courtimpugned in the present appeals[62] is declared as not a good law. Whereas,we uphold the conclusion of the three High Courts, namely, High CourtsBof Kerala, Madras and Delhi on the question under consideration.

46. Although, we have agreed with the view taken by the MadrasHigh Court about the power of the CMM/DM to appoint an AdvocateCommissioner, yet S.L.P (Civil) No. 12011 of 2020 filed by the borrowersneeds to be delinked and heard for admission separately, limited to theCfirst issue about compliance or non-compliance of clauses (i) to (ix) ofSection 14 of the 2002 Act. That issue has been answered by the HighCourt in favour of the secured creditor and against the borrowers, inparagraphs 10 and 11 of the impugned judgment. The correctnesswhereof will have to be considered on its own merits.

47. In view of the above:D

(i) the appeals[63] filed by the secured creditors are allowed.Resultantly, the impugned judgment and order passed by the BombayHigh Court is set aside and the subject writ petition[64 ]stands dismissed.

(ii) The special leave petition[65] filed by the borrowers against theEimpugned judgment and order of the Madras High Court is delinked forbeing heard for admission on 4.3.2022, on the limited issue (first issue)regarding compliance or non-compliance of clauses (i) to (ix) of Section14 of the 2002 Act in the fact situation of the present case.

(iii) No order as to costs.

FPending application(s), if any, stands disposed of.

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Appeals disposed of.

(Assisted by : Shevali Monga, LCRA)

62 see Footnote No.5

63 Civil Appeal No….. of 2022 @ SLP (Civil) No.30240 of 2019; Civil Appeal No…..of 2022 @ SLP (Civil) No.2055 of 2020; Civil Appeal No…..of 2022 @ SLP (Civil)No……of 2022 @ Diary No.17059 of 2020; and Civil Appeal No…..of 2022 @ SLP(Civil) No……of 2022 @ Diary No.23733 of 2020 [Footnote No.5]

64 Writ Petition (L) No.28480 of 2019 [Footnote No.17]

65 SLP (Civil) No.12011 of 2020 [Footnote No.7]