Indiabulls Housing Finance Limited v. M/s. Deccan Chronicle Holdings Limited and Others

13) After detailed discussion on this question, the Court rejected the applicability of the doctrine of election by holding that simply because remedy under the provisions of the DRT Act was availed would not mean that the financial institution was precluded from taking steps under SARFAESI Act. Thus, answering the question in the affirmative, essence of the discussion can be captured in the following paragraphs:

14) With this, we now address the central issue on which detailed arguments were advanced by both the parties. We may note that our discussion is not on a virgin field as the terrain has already been covered by this Court in M.D. Frozen Foods Exports Pvt. Ltd. & Ors. v. Hero Fincorp Ltd.[2] The learned senior counsel appearing for the appellant had submitted that this case, which is directly on point, not only lays down the proposition that even successor-in-interest (like the appellant herein) would be authorised to invoke the provisions of SARFAESI Act even if the original lender was not a financial institution covered by the Act, it has specifically overruled the judgment of the Andhra Pradesh High Court, which is the subject matter of appeal at hand. On that basis, it was submitted that it was not even necessary to have further probe in the matter.

15) Learned counsel for the appellant is factually correct in pointing out that the impugned judgment of the Andhra Pradesh High Court is specifically noted and overruled by this Court in M.D. Frozen Foods. Therefore, it would be apt to discuss the said judgment in the first instance.

16) In M.D. Frozen Foods the appellants had borrowed monies for their business from the respondents against security of 2 (2017) SCC Online SC 1211 immovable properties by creating an equitable mortgage. Loan agreement contained an arbitration clause. Since the appellant defaulted in making the payment and the account became NPA, the respondent invoked the arbitration clause on November 16,

2016. However, three months before this invocation, a notification was issued on August 05, 2016 specifying certain Non-Financial Banking Companies (NFBCs) covered under clause (f) of Section 45-I of the RBI Act, with assets of more than Rs. 500 crores and above, as financial institutions and directing that the provisions of SARFAESI Act shall apply to such financial institutions with the exceptions of provisions of Sections 13 to 19 of that Act. Sections 13 to 19 were made applicable, as per the notification, only to such security interest which is obtained for securing repayment of secured debt with principal amount of Rs.[1] crore and above. The respondent was specifically covered by the said notification which was issued in exercise of powers conferred under sub-clause (iv) of clause (m) of sub-section (1) of Section 2 read with Section 31A of the SARFAESI Act. In view of the aforesaid notification, the respondent issued a notice under Section 13(2) of SARFAESI Act on November 24, 2016 for one of the seven properties mortgaged to it against the aforesaid loan which was advanced to the appellants.

17) Having regard to the aforesaid facts in M.D. Frozen Foods, the Court formulated following three questions which had arisen for consideration:

SARFAESI Act in respect of debts which have arisen out of a loan agreement/mortgage created prior to the application of the SARFAESI Act to the respondent?

(m) has been issued after the account became an NPA under Section 2(1)(o) of the said Act?” These questions amply demonstrate that the instant case is virtually on the same footing.

18) Insofar as question ‘A’ is concerned, the Court categorically held that merely because remedy under the Arbitration Act was invoked was no ground to debar the respondent from taking recourse to the SARFAESI Act. The discussion from that judgment is reproduced below:

46. A reading of Section 37 discloses that the application of the SARFAESI Act will be in addition to and not in derogation of the provisions of the RDDB Act. In other words, it will not in any way nullify or annul or impair the effect of the provisions of the RDDB Act. We are also fortified by our above statement of law as the heading of the said section also makes the position clear that application of other laws are not barred. The effect of Section 37 would, therefore, be that in addition to the provisions contained under the SARFAESI Act, in respect of proceedings initiated under the said Act, it will be in order for a party to fall back upon the provisions of the other Acts mentioned in Section 37, namely, the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, or any other law for the time being in force.”

28. These observations, thus, leave no manner of doubt and the issue is no more res integra, especially keeping in mind the provisions of Sections 35 and 37 of the SARFAESI Act, which read as under:

29. The aforesaid two Acts are, thus, complimentary to each other and it is not a case of election of remedy. xx xx xx

33.

SARFAESI proceedings are in the nature of enforcement proceedings, while arbitration is an adjudicatory process. In the event that the secured assets are insufficient to satisfy the debts, the secured creditor can proceed against other assets in execution against the debtor, after determination of the pending outstanding amount by a competent forum.

34. We are, thus, unequivocally of the view that the judgments of the Full Bench of the Orissa High Court in Sarthak Builders Pvt. Ltd. v. Orissa Rural Development Corporation Limited, the Full Bench of the Delhi High Court in HDFC Bank Limited v. Satpal Singh Bakshi (supra) and the Division Bench of the Allahabad High Court in Pradeep Kumar Gupta v. State of U.P. lay down the correct proposition of law and the view expressed by the Andhra Pradesh High Court in Deccan Chronicles Holdings Limited v. Union of India following the overruled decision of the Orissa High Court in Subash Chandra Panda v. State of Orissa does not set forth the correct position in law.

19) Insofar as questions ‘B’ and ‘C’ are concerned, the Court again referred to the conflicting opinion of different High Courts and after discussion held that the SARFAESI Act was retroactive in nature and, therefore, once this Act came into force, the respondent in the said case had right to invoke the provisions of the Act even if loan agreement was entered into and mortgage created prior to the coming into force the SARFAESI Act. Paragraphs 36 to 38 of the judgment need to be reproduced in this behalf, which are to the following effect:

20) The Court also referred to certain judgments laying down distinction between retroactive and retrospective operation of a particular statute[3].

21) The fact situation was, thus, almost the same in the instant case. The only difference is that here the loan was initially sanctioned by IBFSL which stands merged with the appellant and the appellant is the successor-in-interest which is covered by the SARFAESI Act. In the aforesaid case, though the entity which disbursed the loan remained the same, however, at the time

3 West v. Gwynne, 1911 2 Ch 1 at pp. 11, 12 Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil, 1962 Supp (1) SCR 700 In re Athlumney. Ex parte Wilson, (1898) 2 Q.B. 547 when the loan was given by the respondent to the appellant it was not a financial institution covered under the SARFAESI Act, which status was attained by the respondent in view of notification dated August 05, 2016 issued much after the loan was disbursed to the appellant therein. This does not make any difference in the outcome, as discussed in detailed hereinafter.

22) Learned counsel for respondents could not dispute that the aforesaid judgment covers the present case in its entirety. This position had to be accepted by them having regard to the fact that the judgment of the High Court which is impugned in these proceedings has been specifically overruled by this Court in M.D. Frozen Foods case. Faced with this stark reality staring at the face of the respondents, a valiant effort was made to convince this Bench to take a contrary view and in the process it was submitted that in M.D. Frozen Foods some important legal aspects have not been considered.

23) To put it pithily, the submissions of the learned counsel for respondents revolved around the following aspects:

(i) The appellant had neither advanced nor granted any loan or financial assistance to respondent no. 1 and, therefore, it could not have invoked the provisions of the SARFAESI Act.

(ii) Respondent no. 1 could not be treated as ‘borrower’ as defined under Section 2(1)(f) of the SARFAESI Act read with Sections 2(1)(c) and 2(1)(m) of that Act. Submission was that the respondent no. 1 is not a person who has been granted financial assistance by any Bank or Financial Institution nor can respondent no. 1 be brought under the ambit of the definition of being a person who has given a guarantee or create any mortgage or pledge as security for the financial assistance granted by any Bank or Financial Institution, i.e., the appellant. It was argued that the definition of the term borrower is clear and un-ambiguous itself and the rule of literal interpretation deserves to be deployed. The respondents relied upon the dictum in P.K. Unni vs. Nirmala Industries & Others[4] wherein it is held that the Court must proceed on an assumption that the legislature did not make a mistake and that it intended to say what it said it was further held that even assuming that there was a defect or omission in the words used by the legislature, the Court would not go to its said to correct or make up the deficiency. The Court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The courts are not authorised to alter a word so as to produce a “casus omissus”. Support from the judgment in the matter of Union of India v. Elphin Stone Spinning and Weaving Company Limited & Others[5] was also taken in this behalf. The learned counsel also referred to yet another case, viz., Delhi Financial Corporation and another v. Rajiv Anand and others[6] wherein this aforesaid principle is reiterated.

(iii) The loan agreements dated December 08, 2011 and

January 05, 2012 which were entered into between respondent No. 1 and IBFSL cannot be classified as ‘security arrangement’ within the meaning of Section 2(1) (zb) of the SARFAESI Act.

(iv) These agreements did not create ‘security interest’ within the meaning of Section 2(1)(zb) of the SARFAESI Act. It was argued that the term security assets as defined under Section 2(1)(zc) of the Act means the property on which the security interest is created. The terms ‘security interest’ is defined under Section 2(1)(zf) to mean right, title, interest of any kind whatsoever upon property created in favour of a secured creditor (as defined under Section 2(1)(zb) and includes a mortgage, charge, hypothecation or assignment other than specified in Section 31). Similarly security agreement is defined under Section 2(1)(zb). The submission was that the agreements dated December 08, 2011 and January 05, 2012 do not fall within the purview of Section 2(a)(zb) since at the time when the said agreements were entered into, the entity in favour of which they were executed, i.e., Indiabulls Financial Services Limited, was not a secured creditor within the meaning of Section 2(1)(zd) of the SARFAESI Act. Under the circumstances are the necessary ingredients of Section 13(1) and 13(2) being absent, no action could have been taken under Section 13(2) or Section 13(4) of the Act. It is this say of the respondents that the clauses contained in the scheme of amalgamation, firstly do not manifest any intention to create any new right in favour of the amalgamated company. Secondly, clauses in scheme of amalgamation, albeit sanctioned by Court, cannot be raised to the pedestal of statutory provisions creating a right in favour of subsequent acquirer of rights not statutorily provided, nor can such clauses be held to create a deeming fiction not statutorily provided.

(v) Amalgamation of an entity not lying within the ambit of

SARFAESI Act then entity which falls within realm of the said Act would not entitle amalgamated entity to invoke the provisions of SARFAESI Act, in respect of a transaction/agreement entered into much prior to the amalgamation. The submission was that the imprimatur created by virtue of sanctioning of a scheme by High Court under Sections 391 to 394 of the Companies Act cannot be held to create rights, liabilities and obligations which were not statutorily envisaged. It was argued that the provisions of SARFAESI Act, cannot be held to be purely procedural, they create substantial right in favour of the secured creditor for recovery of its dues by way of enforcement of security interest without invocation of the court. Section 13(1) creates substantive rights and by no stretch of imagination, and cannot be said to a provision, procedural in nature. The procedure for enforcement of that substantial right is provided under Sub-Section (2) on the happening of the eventuality as mentioned therein. That a further procedure of prescribing the details in a notice is to be given by virtue of Section 13(3) and provide for making a representation under Section 13(3)(A) and further provides for a procedure for release and recovery of secured debt under Section 13(4). In absence of a substantial right being created by Section 13(1), procedural provisions contained in sub- Sections (2) to (4) are meaningless as it would not provide a remedy for the enforcement of substantial right created under Section 13(4). It would not, therefore, be correct to treat SARFAESI Act as a merely procedural statute.

24) It was submitted that this was a reverse merger inasmuch as IBFSL was a holding company and the appellant company was only a subsidiary company and holding company was sought to be amalgamated and merged with the subsidiary company.

25) It was also submitted that the entire exercise of merger was undertaken to transfer loan from financial company to a financial company in order to take advantage of provisions of SARFAESI Act, which according to the respondents is not permissible in law. On the aforesaid basis, the first submission of the learned counsel for respondents was that there was no transfer and vesting of loan in the appellant company provisions as per the scheme. It was argued that the scheme envisaged, under paragraph 4, that with effect from the appointed date, i.e., April 01, 2012, the amalgamating company comprising the amalgamating undertaking shall, pursuant to the sanction of the scheme by the High Court and compliance of statutory provisions, be and stand transferred to and vested in the amalgamated company as a going concern without any further act, instrument, deed, matter or thing so as to become, as and from the appointed date April 01, 2012, the undertakings of the amalgamated company by virtue of and in the manner provided in the scheme.

26) Various other clauses of the scheme were referred to, to buttress the aforesaid submission. In this hue, it was argued that since as per Clause 8 of the Scheme, all suits, actions and other proceedings including legal and taxation proceedings etc. are to be continued or enforced by or against the amalgamating company. The proceedings instituted by IBFSL under Section 9 of the Arbitration Act against the respondents would be deemed to be an act of the appellant. In other words, the amalgamating company can have no better and further right that one possesses by IBFSL.

27) The learned counsel for the respondents attempted to strengthen the aforesaid architecture with the help of some legal precedents. In the first instance, reference was made to the judgment in the case of Rishabh Agro Industries Limited v. P.N.B. Service Limited[7] wherein this Court held as under:

It was argued that the above observations of this Court clearly negate the submission of the appellant that because the SARFAESI Act has been enacted to overcome the accumulated NPA in public interest, the term ‘borrower’ has to be widely construed.

28) Reliance was also placed on the Constitution Bench judgment in the case of Padma Sundara Rao v. State of Tamil Nadu[8] where this Court has held as under:

13. In D.R. Venkatchalam v. Dy. Transport Commr. [(1977) 2 SCC 273: AIR 1977 SC 842] it was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [(2000) 5 SCC 515]) The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case [(1996) 3 SCC 88]. In Nanjudaiah case [(1996) 10 SCC 619] the period was further stretched to have the time period run from date of service of the High Court's order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent.

15. Two principles of construction — one relating to casus omissus and the other in regard to reading the statute as a whole — appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. “An intention to produce an unreasonable result”, said Danckwerts, L.J., in Artemiou v. Procopiou [(1966) 1 QB 878: (1965) 3 All ER 539: (1965) 3 WLR 1011 (CA)] (at All ER p. 544-I), “is not to be imputed to a statute if there is some other construction available”. Where to apply words literally would “defeat the obvious intention of the legislation and produce a wholly unreasonable result”, we must “do some violence to the words” and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC [1963 AC 557: (1963) 1 All ER 655: (1963) 2 WLR 559 (HL)] where at AC p. 577 he also observed: (All ER p. 664-I) “This is not a new problem, though our standard of drafting is such that it rarely emerges.”]”

29) It was contended that in light of the above-stated principles enunciated in the Constitution Bench decision, since the language of Section 2(1)(f) and 2(a)(zf) is unambiguous, the casus omissus cannot be applied by a judicial interpretation process. It was submitted that there is no scope of reading something into, which it does not exist.

30) Counsel for the respondents also placed strong reliance upon the judgment in the ICICI Bank Limited v. Official Liquidator of APS Star Industries and others[9] which centres around the Banking Regulation Act, 1949 and guidelines of RBI issued on the subject of inter se transfer of non-performing assets by Bank. It was held that the Banking Regulation Act, 1949 does not come in the way of such transfers. Banks/Banking Companies are covered under SARFAESI Act in any event. As such, transfers inter se bank would not give rise to the question of change in the nature of the lender leading to change in the status of applicability of SARFAESI Act. On that basis, it was submitted that such a transfer would not change the status of a borrower who, if earlier created a security interest, continues to be a borrower of another secured creditor. However, in the present case, there is sought to be a complete change in the status of the borrower and that too without his consent.

31) The learned counsel, at the end, made a passionate plea about the far reaching consequences which may ensue if the appellant is permitted to take recourse to the provisions of SARFAESI Act as debts would be transferred to SARFAESI companies to take advantage of that enactment.

32) After considering the aforesaid submission, we are of the opinion that entire edifice is built on the pleas which are squarely answered in M.D. Frozen Foods and there is no reason to take a different view therefrom for the reasons that follow hereinafter.

33) In the instant case, loan was given by IBFSL which was not a financial institution covered by the SARFAESI Act when the loan was given. However, this entity has got merged with the appellant and appellant is a SARFAESI company. In this backdrop, the entire thrust of the argument of the respondent is that as a successor company, the appellant cannot take advantage. In order to deal with this aspect, we will have to first taken into consideration, the effect of such a merger scheme as approved by the High Court. It is to be kept in mind that the loan/debts/financial assets stood vested in the appellant pursuant to the amalgamation scheme filed by the two companies under Sections 391 and 394 of the Companies Act, 1956 whereunder the predecessor company, IBFSL got amalgamated with the appellant, the effect of such a merger is explained by this Court in Saraswati Industrial Syndicate Ltd. v. Commissioner of Income Tax10 in the following manner: 10 1990(Supp) SCC 675

34) Thus, on sanction of the scheme of amalgamation, all loans, recoveries, security, interest, financial documents, etc. in favour of IBFSL got transferred to and stood vested in the appellant including the loans given by IBFSL to respondent borrowers, debts recoverable by IBFSL from respondent borrowers in favour of IBFSL, security documents executed by respondent borrowers in favour of IBFSL, etc. On the sanctioning of the scheme, the respondent borrowers became the borrower of the appellant as if the financial assistance was granted by the appellant to the respondent borrowers.

35) There is a force in the contention by the appellant that the debt with underlying securities is the asset of IBFSL and that IBFSL had right to transfer/assign its assets to any person without seeking consent of the borrower. Such transfer/assignment is recognized and that this Court in the case of Official Liquidator of APS Star Industries has recognised and upheld such an assignment.

36) In the aforesaid backdrop, the factor which assumes importance and has to be kept in mind is that the appellant is an assignee of a debt through the amalgamation of original lender with the appellant which was effected invoking the statutory provisions of the Companies Act. Once this is kept in mind, there would not be any difference as far as consequences in law are concerned from the case of M.D. Frozen Foods and this case. Therefore, M.D. Frozen Foods case would apply to the facts of this case in all force.

37) Further, it is too farfetched to argue that just to realise the dues from the respondents, IBFSL and the appellant devised the plan of merger so as to attract the provisions of SARFAESI Act and we are not inclined to accept such a submission. Various judgments which are relied upon by the respondents also would not apply as we neither find it to be a case of the Court creating any legislation or supplying any casus omissus.

38) Apart from the factual parity, even legally the arguments of the respondents do not carry any weight. The view taken in M.D. Frozen Foods is that the SARFAESI Act is retroactive in nature. In the process, the Court approved the Full Bench decision of the Orissa High Court in Sarthak Builders Pvt. Ltd., Chinta, Arunodaya Market, Cuttack & Another v. Orissa Rural Development Corporation Limited, Station Square, Bhubaneswar & 5 Ors.11 and made the following observations: “38…In case of retroactivity, the Parliament takes note of the existing conditions and promulgates the remedial measures to rectify those conditions. In fact the SARFAESI Act, in our view, was to remedy such a position and provide a measure against secured interests. The scheme of the SARFAESI Act, is really to provide a procedural remedy against security interest already created. Therefore, an existing borrower, who had been granted financial assistance was covered under Section 2(f) of the said Act as a ‘borrower’. Not only this expression, the definition clauses dealing with ‘debt securities’, ‘financial assistance’, ‘financial assets’, etc., clearly convey the legislative intent that the SARFAESI Act applies to all existing agreements irrespective of the fact whether the lender was a notified ‘financial institution’ on the date of the execution of the agreement with the 11 (2014) SCC Online Ori 75 borrower or not. The scheme of the SARFAESI Act sets out an expeditious, procedural methodology, enabling the bank to take possession of the property for non-payment of dues, without intervention of the court. The mere fact that a more expeditious remedy is provided under the SARFAESI Act does not mean that it is substantive in character or has created an altogether new right. To accept the argument of the appellants would imply that they have an inherent right to delay the enforcement against the security interest!

39. The catena of judgments referred to by learned senior counsel for the appellants on substantive law not being retrospective in operation, unless expressly stated so in the Act would, thus, have no application to the matter in issue, in view of what we have observed aforesaid. On the other hand, as observed by Buckley, L.J. in West v. Gwynne, retrospective operation is one matter and interference with existing rights is another. In that context, it was ruled that the provisions of the Conveyancing of Law and Property Act, 1892 were held applicable to leases containing a covenant, condition or agreement against assigning, underletting or parting with possession or disposing of land or property leased without license or consent to all leases whether executed before or after the commencement of the Act. Such a construction was held not to make the Act retrospective in operation but merely effected the future existing rights under all leases whether executed before or after the date of that Act. (Discussed in Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil).

40. In a similar vein, are the observations made in the case of In re Athlumney. Ex parte Wilson, where the question posed before the Queen's Division Bench was whether Section 23 of the Bankruptcy Act, 1890 was retrospective in its operation. In the aforementioned context, Wright, J., speaking for the Bench, illuminatingly opined: “Perhaps no rule of construction is more firmly established than this — that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only… it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them…It is said that there is one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights, and it is suggested here that the alteration made by this section is within that exception…” (Emphasis supplied)

41. Similarly, the date on which a debt is declared as an NPA would again have no impact. We are, thus, of the view that the provisions of the SARFAESI Act would become applicable quaall debts owing and live when the Act became applicable to the respondent in terms of the parameters contended by learned senior counsel for the respondent and enlisted at serial Nos. i to iv in para 18.” It, thus, follows that there is only a procedural change in respect of forum for recovery of debt and no substantive rights are affected.

39) In view of the aforesaid judgment, argument of the respondents herein predicated on Sections 69 and 69A of the Transfer of Property Act, which weighed with the High Court, is without any substance.

40) The aforesaid view also gets support from the judgment of this Court in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors.12 wherein the background and salient feature of the SARFAESI Act have been extensively discussed and analysed and the Court has also highlighted the objective behind enacting such a legislation.

41) These sentiments are echoed in the subsequent judgment in the case of United Bank of India v. Satyawati Tondon and Others13 wherein it was held that the Act is intended to give impetus to industrial development in the country by providing speedy procedure of recovery. On account of lack of infrastructure and manpower, regular courts were not able to cope with the speed in adjudication of recovery cases. In the light of recommendations of the Tiwari Committee, special tribunals came to be set up under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for recovery of huge accumulated NPAs of the bank loans. On the recommendations of the Narasimham Committee and Andhyarujina Committee, SARFAESI Act was enacted to empower banks and financial institutions to take possession of the securities and to sell them without the intervention of the Court. In this regard, reference may be made to the following observations of this Court in the case of Satyawati Tondon:

“1…With a view to give impetus to the industrial development of the country, the Central and State Governments encouraged the banks and other financial institutions to formulate liberal policies for grant of loans and other financial facilities to those who wanted to set up new industrial units or expand the existing units. Many hundred thousand took advantage of easy financing by the banks and other financial institutions but a large number of them did not repay the amount of loan, etc. Not only this, they instituted frivolous cases and succeeded in persuading the civil courts to pass orders of injunction against the steps taken by banks and financial institutions to recover their dues. Due to lack of adequate infrastructure and non-availability of manpower, the regular courts could not accomplish the task of expeditiously adjudicating the cases instituted by banks and other financial institutions for recovery of their dues. As a result, several hundred crores of public money got blocked in unproductive ventures.

2. In order to redeem the situation, the Government of India constituted a committee under the Chairmanship of Shri T. Tiwari to examine the legal and other difficulties faced by banks and financial institutions in the recovery of their dues and suggest remedial measures. The Tiwari Committee noted that the existing procedure for recovery was very cumbersome and suggested that special tribunals be set up for recovery of the dues of banks and financial institutions by following a summary procedure. The Tiwari Committee also prepared a draft of the proposed legislation which contained a provision for disposal of cases in three months and conferment of power upon the Recovery Officer for expeditious execution of orders made by adjudicating bodies. xx xx xx

16. Thus, the Act intends to provide remedy in respect of pre - existing loans. The interpretation that the Act will apply only to future debt transactions defeats the very purpose of law of reducing the non-performing assets. This object is clearly mentioned in the Statement of Objects and Reasons. As noted in the case of Satyaivati Tondon amount of rupees one lakh twenty thousand crores was due to the banks in the year 2001 which had adversely affected the economy of the country. Obviously, the Act is intended to recover the said pre-existing loans by the machinery provided under the SARFAESI Act. The pre-existing loans are not excluded from the purview of the Act. Similarly, the object of notifying the financial institution in question is to enable such institution to avail the provisions of SARFAESI Act in respect of existing loans. This salient object of the Act does not appear to have been noticed in Subash Chandra Panda.”

42) We may also reproduce the following discussion from that judgment which completely answers most of the arguments raised by the learned counsel for the respondents:

43) The aforesaid discussion, thus, leads us to conclude that respondent No.1 would be treated as ‘borrower’ within the meaning of Section 2(1)(f) of the SARFAESI Act; the arrangement would be classified as ‘security arrangement’ under Section 2(1) (zb); the agreements created ‘security interest’ under Section 2(1) (zf); and the appellant became ‘secured creditor’ within the meaning of Section 2(1)(zd) of SARFAESI Act.

44) As a result, we hold that judgment of the High Court is erroneous and set aside the same. This appeal is allowed. No orders need to be passed in the contempt petitions, which stand disposed of .............................................. J. (A.K. SIKRI) ............................................. J. (ASHOK BHUSHAN) NEW DELHI; FEBRUARY 23, 2018.