BRAIN MAPPRING | test and Techniques
Posted Feb 2018
Posted Feb 2017
Article 370 Of The Constitution Of India, 1950 & The Security Interest Act, 2002 Constitutional Set-up: The Constitution of India, 1950 was based on the Westminster Model i.e. bicameral legislative bodies at the centre and unicameral/bicameral legislatives in the states, like the most post war constitution. The Constitution of India has federal structure and work on the principle of rule of law and of legality and ensures equality before law and equal protection of laws within the boundary of India which prohibits the place of arbitrariness. The federal structure has broadly discussed in Part XI of the Constitution of India, 1950, which is the idea of Government Act, 1935.Every state has a High Court (some share a common High Court) and the court subordinate to it which is under an administrative and judicial control of concerned High Court of the state. All are accountable to the Apex Court and the law declared by the Apex Court i.e. Supreme Court in India is binding on all the courts. Article 370 of the Constitution of India, 1950: The Indian Constitution says India is Union of States under Article 1 of Indian Constitution, 1950. According to Constitution of Jammu Kashmir, 1956 The State of J&K is an integral part of the Union of India this is said in the Section 3 of their Constitution. Section 147 of the J&K constitution, 1956 states that, no Bill or Amendment seeking to make any change in the provision of section 3 of the constitution shall be introduced or moved in either House of Legislature of the State of J&K, the State of J&K chronologically enjoy the special treatment with in the frame work of Indian Constitution. Amendment that are made to Indian Constitution, 1950 can only made in the Constitution of J&K if President, with the concurrence of the state government applies such amendment to the state of J&K. The distribution of power between the Union of India and State of J&K is concerned, it is observed according to the matters, if the matter is of national importance in which uniform policy is considered necessary the same rest with Union of India and the matter of local interest remain with the state of J&K. The Constitution of J&K, 1956 is subordinate to the constitution of India, 1950 and hence there is no vestige and evidence of sovereignty can be traced over Constitution of India, 1950. The Preamble of the Constitution of J&K is deprived of the words, ‘Sovereign Socialist Secular Democratic Republic,’ as they appear in the Preamble of the Constitution of India, 1950. The SARFAESI Act, 2002: The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 empowers the banks to enforce their security interest outside the court’s process by moving under section 13 SARFAESI Act to take possession of secured asset of the borrower and sell them outside the court process. The Preamble of the SARFAESI Act states that, it is an Act to regulate securitization and reconstruction of financial asset and enforcement of security interest and for matters connected therewith or incidental there to. Section 1(2) of the SARFAESI Act, categorically states that, it will extend to the whole of India. The key provisions of SARFAESI Act are Section 13(4) and Section 1. Under Section 13(2) of the SARFAESI Act where any borrower, who is under a liability to secured creditor under a security agreement, makes any default in repayment of a secured debt, and his account in respect of such debt is classified as a non performing asset by the secured creditor within 60 days from the date of such notice, failing which the secured creditor shall be entitled to exercise all or any of the right as provided for the secured creditor under Section 13(4) of the SARFAESI Act. Section 17 of the SARFAESI Act confer a right to appeal to any person, including the borrower, if that person is aggrieved by any of the measure referred to in section 13(4) of the SARFAESI Act taken by the by secured creditor. State bank of India v. Santosh Gupta &Anr. Leading case under the SARFAESI Act as the supreme court extend its application to the State of J&K and held that the SARFAESI Act in pith and substance is identifiable with the entry 95 of list 1 of the seventh schedule to the constitution of India , 1950. The other cases which can be referred for the importance of SARFAESI Act are Union of India Delhi High Court Bar Association (2002), Central Bank of India v. State of Kerala (2009) and the recent case of UCO Bank & Dipak Debbarma& Ors. Inter alia in every case the Supreme court held that the SARFAESI Act is relatable to the entry of “banking” which is included in list I of the seventh schedule; sale of mortgaged property by a bank is an inseparable and integral part of the business of banking. Lastly, the entire gamut controversy can be diluted by taking into consideration the following points of relevance: The SARFAESI Act is relatable to entry 45 read with entry 95 of the list I of the seventh schedule to the constitution of India, 1950. Provision of the SARFAESI Act are not conflict with Section 140 of the TPA Act of J&K, 1920, the necessary emphasis must be supplied to the proviso annexed to rule 8(5) of SARFAESI Rule, 2002; List II is frozen, so far as its applicability to the state of J&K is concerned The Constitution of J&K, 1956 is subordinate to the Constitution of India, 1950. The state of J&K has no vestige of sovereignty outside the Constitution of India, 1950.