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Prakash   25 August 2022


Sarfaesi Case closed by Magistrate without recording the Commissioner's Report. What is the next step possible ?


 1 Replies

Chirag Bellaney   26 September 2022

You may refer to judgement from India Kanoon on M/S Maruthi Minerals Pvt Ltd vs Union Of India on 9 February, 2021 whereby Sr No. 19 & 20 which mentions that " Advocate Commissioner to submit his report was essentially ministerial in nature,"source of such power may be traced to Section 21 of the General Clauses Act, 1897


20. With regard to the impact of reopening the case to enable submission of the Advocate Commissioner's report on the legality of the recovery of the secured asset, we note that the proceedings were alive at the time when the Advocate Commissioner had taken possession of the secured asset in December, 2019. Hence, it cannot said that recovery of possession by the Advocate Commissioner was without jurisdiction or had infracted the constitutional rights of the petitioner under Section 300A of the Constitution of India. Subsequent filing of the Advocate Commissioner's report after closure of the proceeding, in our considered opinion, does not affect any legal right of the petitioner so as to render recovery of possession in the present case without jurisdiction. Reference to the decision in Vareed Jacob (1 supra) is misplaced. In the present case, recovery of possession by the Advocate Commissioner was prior to the dropping of the proceeding and therefore, it cannot be said that the direction upon the advocate commissioner was not subsisting at the time when he had taken possession.



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