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The Hon’ble Supreme Court by its Judgment dated 25.02.2022 in the matter of NKGSB Cooperative Bank Ltd. Vs Subir Chakravarty & Ors.being SLP (Civil) No.30240/2019 has passed a landmark Judgment on the issue as to whether it is open to the District Magistrate (DM) or the Chief Metropolitan Magistrate (CMM) to appoint an Advocate and authorize him/her to take possession of the secured assets and documents relating thereto and to forward the same to the secured creditor in view of Section 14(1A) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), which stipulates that the District Magistrate or the Chief Metropolitan Magistrate may authorize any officer subordinate to him for acting under the provisions of SARFAESI.

            The Hon’ble Supreme Court on considering the aspect of the matter as also the objections of the borrowers qua the appointment of Advocates has come to a conclusive finding that the Advocates are not barred from being appointed as the Commissioners by the Court of DM/CMM.  The Hon’ble Court was of the view that the CMM/DM can avail the services of an Advocate or any officer subordinate to him for discharging the ministerial work of taking possession of the secured assets and documents relating thereto and nothing prevents him/her from continuing to follow the same regime even after the insertion of sub-Section (1A).  The Hon’ble Court had further held that an Advocate is a guardian of constitutional morality equally with the Judges.  The Hon’ble Court was also of the view that there is intrinsic de jure functional subordinate relationship between the CMM/DM and the Advocate being an officer of the Court.  The Court had accordingly given a finding to the effect that the CMM/DM in exercise of powers under Section 14(1) of the SARFAESI Act is legally entitled to appoint an Advocate as a Commissioner to assist him/her in execution of orders passed under SARFAESI.

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