Soumen Sen, J. - (1.) The plaintiff anticipating that the dye is cast and bolt impending, filed this suit to stave off an imminent threat of initiating a proceeding under the SARFAESI Act.
(2.) The plaintiff filed the suit in which the bank has been made party. A cobweb of cause of action has been spun to give an impression that the issues are inextricably connected and the presence of the bank would be necessary at the time of trial of this suit. When the suit was filed both the RDB and the SARFAESI Act have come into force and initiation of proceeding under the SARFAESI Act was imminent. The applicant has taken step under the SARFAESI Act. The notice under section 13(2) of the said Act dated 4th March, 2014 followed by measures apparently are not under challenge. This suit was instituted in October 2013 prior to the issuance of the notice under SARFAESI Act.
(3.) The question arises as to the fate of this suit concerning the secure assets forming the part of the security agreement whether could be independently dealt with in a civil proceeding not withstanding the clear bar under section 34 of the SARFAESI Act. This issue was addressed by me in Mangalam Fiscal Services Pvt. Ltd. v. State Bank of India being GA No.914 of 2014 decided on 3rd December, 2014 in the manner following: "In Standard Chartered Bank (supra), the Hon'ble Supreme Court in paragraph 37 referred to three modes of taking possession of the Secured Assets by the Secured Creditors which are as follows:- (i) The first method would be where the secured creditor gives the requisite notice under rule 8(1) and where he does not meet with any resistance. In that case, the authorised officer will proceed to take steps as stipulated under rule 8(2) onwards to take possession and thereafter for sale of the secured assets to realize the amounts that are claimed by the secured creditor. (ii) The second situation will arise where the secured creditor meets with resistance from the borrower after the notice under rule 8(1) is given. In that case he will take recourse to the mechanism provided under section 14 of the Act viz. making application to the Magistrate. The Magistrate will scrutinize the application as provided in section 14 and then if satisfied, appoint an officer subordinate to him as provided under Section 14(1)(A) to take possession of the assets and documents. For that purpose the Magistrate may authorize the officer concerned to use such force as may be necessary. After the possession is taken the assets and documents will be forwarded to the secured creditor. (iii) The third situation will be one where the secured creditor approaches the Magistrate concerned directly under section 14 of Act. The Magistrate will thereafter scrutinize the application as provided in section 14 and then if satisfied, authorize a subordinate officer to take possession of the assets and documents and forwards them to the secured creditor as under clause (ii) above.;