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2015 DIGILAW 1254 (MP)

Chetan v. Central Bank of India

2015-12-17

PRAKASH SHRIVASTAVA

body2015
ORDER 1. Heard on the question of admission and interim relief. 2. This writ petition has been filed by the petitioner challenging the order dated 4.9.2015 passed by the Additional District Magistrate, Indore under section 14 of the SARFAESI Act. 3. Learned counsel for the respondent No.1 has raised a preliminary objection that the petitioner has an alternative efficacious remedy of appeal against such an order. 4. The petitioner's submission that the order has been passed in violation of the principles of natural justice and without serving any notice to the petitioner, at this stage cannot be accepted in view of the order-sheet of the District Magistrate dated 10.9.2015 which reflects that the notice was duly served by way of publication in the newspaper. 5. Against the impugned order, the petitioner has remedy of appeal under section 17 of the SARFAESI Act. The Supreme Court in the matter of Standard Chartered Bank v. V. Noble Kumar and others, reported in 2014(1) MPLJ 396, in this regard has held as under :- “30. The “appeal” under section 17 is available to the borrower against any measure taken under section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under section 13(4). Alienating the asset either by lease or sale etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, section 14 authorises the Magistrate only to take possession of the property and forward the asset only with the connected documents to the borrower. Therefore, the borrower is always entitled to prefer an “appeal” under section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under section 14. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under section 14. We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contemplated under section 14 or without resorting to such a process obtaining of the possession of a secured asset is always a measure against which a remedy under section 17 is available.” 6. Since undisputedly the suit house was mortgaged and the third floor of the house on which the petitioner is claiming his interest, has been constructed after the mortgage, therefore, the proper remedy available to the petitioner is to approach the DRT under section 17 of the SARFAESI Act. 7. Since the petitioner has an alternative efficacious remedy available, therefore, no ground is made out to entertain the writ petition directly, which is accordingly dismissed with liberty to the petitioner to avail the remedy of appeal.