JUDGMENT : RAJESH H. SHUKLA, J. 1. As learned advocates appearing for the respective parties have requested to take the matter as finally heard, same has been heard finally. 2. The present petition is filed by the petitioner under Articles 14, 226, 227 & 300A of the Constitution of India as well as under the provision of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued to quash and set aside the order of the District Magistrate, Surat dated 29.05.2015 and also to quash and set aside the subsequent action taken by the Reserved Bank of India. It is also prayed that the respondents may be restrained from taking any further measure under the SARFAESI Act in respect of the acquired assets on the grounds stated in the memo of petition. By way of amendment, it was also prayed for further interim relief at Paragraph Nos.13A-1 & 13A-2 that the respondent-bank may be restrained from auctioning the subject property as per public notice at Annexure-L may be set aside. 3. Heard learned advocate, Shri Sunit Shah appearing with learned advocate, Shri N.V. Gandhi, learned advocate, Shri Dharmesh Shah for the respondent nos.1 and 2, learned AGP Shri Banaji for the respondent no.3 and learned advocate, Shri Kinariwala appearing with learned advocate, Shri Nikunj Balar for the respondent no.4-original borrower. 4. Learned advocate, Shri Sunit Shah appearing with learned advocate, Shri N.V. Gandhi referred to the papers at length and submitted that the public auction of the premises in question, which are shops, are sought to be held by the respondent-bank for the recovery of the amount, which is a home loan in purported exercise of powers under the SARFAESI Act. Learned advocate, Shri Sunit Shah submitted that the petitioner is neither borrower nor guarantor and he has purchase the property in question (shops) by registered agreement to sale and he is put in possession. He submitted that as the mortgage-deed is not registered either by the mortgagee or the mortgager bank, same is not valid and, therefore, assets cannot be said to be acquired. 5. He submitted that as the mortgage-deed is not registered either by the mortgagee or the mortgager bank, same is not valid and, therefore, assets cannot be said to be acquired. 5. Learned advocate, Shri Sunit Shah, therefore, submitted that the transaction between the respondent no.4-original borrower and the bank is not bonafide transaction and the petitioner is sought to be duped. He, therefore, tried to formulate the submission referring to the papers that the loan is a home loan, which is advanced for the property in question (shops) and not the home. He submitted that there are no installments paid and cheques, which have been given, are dishonoured and still the bank has not taken any steps by filing complaint under Section 138 of the Negotiable Instrument Act. He further submitted that false information has been given that the respondent no.4-original borrower is in possession. He submitted that though the possession is with the petitioner in purported exercise of powers under Section 14 of the SARFAESI Act, recovery is sought to be made by way of sell of the property. Learned advocate, Shri Shah submitted that the order passed by the Magistrate is therefore without any application of mind and is not a reasoned order and no opportunity has been provided to the petitioner, which has led to filing of the present petition. 6. Learned advocate, Shri Sunit Shah submitted that in view of the provision of SARFAESI Act, suit is barred, however, the petition under Article 226 of the Constitution of India would be maintainable before the High Court and, therefore, the present petition is filed. In support of this submission, he has referred to and relied upon the judgment of the Hon’ble Apex Court in case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Ltd. & Ors., reported in (2014) 6 SCC 1 and pointedly referred to the observations made in Paragraph Nos.29 and 32. Learned advocate, Shri Sunit Shah therefore submitted that as the order passed by the Magistrate is without issuing notice to the petitioner, he has been denied any opportunity to produce the evidence for the possession and, therefore, the order may be set aside and the respondent-Magistrate may be directed to decide afresh and till then the auction may not proceed further. Learned advocate, Shri Sunit Shah referred to the papers at length including one agreement to sale (Kabja krar). Learned advocate, Shri Sunit Shah referred to the papers at length including one agreement to sale (Kabja krar). He also referred to Special Civil Suit No.337/2014 filed by the petitioner and submitted that as is recorded, the panchnama was made and the possession is found with the petitioner. Learned advocate, Shri Sunit Shah referred to the order of the Court and also application under Section 14 of the SARFAESI Act. Learned advocate, Shri Sunit Shah strenuously submitted that if the asset is secured and mortgaged, registration is required as per the provision of Section 17 of the Registration Act. He, therefore, submitted that as it has not been registered, it cannot be termed as secured asset, against which the bank could proceed. He, therefore, submitted that in any case, it requires the evidence and, therefore, the matter may be remanded before the Magistrate and this Court may not enter into such disputed questions of fact requiring examination of the facts and evidence. Learned advocate, Shri Sunit Shah also referred to the judgment of the Hon’ble Apex Court in case of Harshad Govardhan Sondagar (supra) and pointedly referred to the observation made in Paragraph No.23 and submitted that it has discussed about the scope of Section 14 of the SARFAESI Act and whether the Metropolitan Magistrate has passed an order on the basis of the satisfaction, is required to be considered. He referred to the papers to emphasis that there is no valid and substantial interest with the bank and, therefore, exercise of power under Section 14 of the SARFAESI Act is misconceived. 7. Learned advocate, Shri Kinariwala submitted that he has preliminary objection with regard to the maintainability of the petition inasmuch as Civil Suit is already filed seeking specific performance of the agreement. He pointedly referred to the averments in the plaint being Special Civil Suit No.337/2014 stating that it has been clearly stated that he is seeking declaration with regard to the possession and has not claimed that he is put in possession. Similarly, he referred to the agreement to sale, which has been termed as “Kabja Vagarno Banakhat”. Learned advocate, Shri Kinariwala submitted that the petitioner desires to have the decree for possession from this Court in exercise of the discretion under Article 226 of the Constitution of India though the documentary evidence prima facie suggests otherwise. Similarly, he referred to the agreement to sale, which has been termed as “Kabja Vagarno Banakhat”. Learned advocate, Shri Kinariwala submitted that the petitioner desires to have the decree for possession from this Court in exercise of the discretion under Article 226 of the Constitution of India though the documentary evidence prima facie suggests otherwise. He submitted that no consideration has been paid and nothing has been placed on record. He submitted that for such valuable property, atleast part of the consideration could be by cheque, which is not produced on record. He, therefore, denied the very transaction with the petitioner and submitted that the petitioner is making a claim on the basis of the agreement to sale. Again he referred to Annexure-D, agreement to sale (Kabja Vagarno Banakhat) and also averments in the plaint to reiterate his submission that even to the knowledge of the petitioner, he is not in possession and, therefore as stated in the plaint itself, he is seeking such declaration regarding the possession. Learned advocate, Shri Kinariwala submitted that when he is seeking declaration regarding the possession, it would imply that he is not having any legal and valid possession with him. He also submitted that a close look at the judgment of the Hon’ble Apex Court in case of Harshad Govardhan Sondagar (supra), it would suggest that it would not be attracted to the facts of the case inasmuch the Hon’ble Apex Court has clearly made observation as to and in which category, it would be applicable. Learned advocate, Shri Kinariwala submitted that in fact, over and above the suit, the petitioner has alternative remedy by way of appeal under Section 17 of the SARFAESI Act before the appropriate authority and, therefore, he cannot invoke under Articles 226 and 227 of the Constitution of India. Learned advocate, Shri Kinariwala referred to the public notice produced at Page No.50 and submitted that the possession is taken from the respondent no.4-original borrower, for which, the photographs are also produced and the notice is clearly suggesting the possession of the respondent no.4. He also tried to submit that the conduct of the petitioner that when the original Special Civil Suit No.337/2014 was filed, the bank was not joined as party and, thereafter, application was given for joining bank as party and the order came to be passed on 19.12.2015. He also tried to submit that the conduct of the petitioner that when the original Special Civil Suit No.337/2014 was filed, the bank was not joined as party and, thereafter, application was given for joining bank as party and the order came to be passed on 19.12.2015. Therefore, the submission that there is suppression or misstatement is misconceived when the petitioner himself has conveniently not joined the bank as party. He, therefore, submitted that when the bank made an application before the respondent no.3-Magistrate, it was not joined as party and, therefore, the bank may not be aware about the suit. Learned advocate, Shri Kinariwala finally submitted that as per the provision of Section 53 of the Transfer of Property Act, agreement to sale without possession and title would not be enforceable. He, therefore, submitted that the present petition may not be entertained. 8. Learned advocate, Shri Kinariwala has also made submission relying upon the judgment of Hon’ble Division Bench of this High Court in case of Vasant Dyeing & Printing Works & Ors. Vs. Asset Reconstruction Company (India) Ltd. (ARCIL) & Ors., delivered in Letters Patent Appeal No.1708 of 2009 dated 04.05.2011 and submitted that that alternative remedy is available, which could be availed. He further submitted that in the said judgment of the Hon’ble Division Bench of this High Court in Paragraph No.12, this High Court has quoted the observation made by the Hon’ble Apex Court in case of United Bank of India Vs. Satyawati Tondon, reported in (2010) 8 SCC 110 , which reads as under : “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute”. 9. Learned advocate, Shri Dharmesh Shah for the respondent nos.1 and 2 – bank submitted that the petition is filed in collusion with the respondent no.4original owner. He submitted that the claim is made by the petitioner on the basis of the agreement to sale, however, the agreement to sale clearly referred to “Kabja Vagarno Banakhat” as it is clearly stated. He further submitted that the respondent no.4, original owner has deposited the original documents with the bank for getting advance by depositing the documents of title. He submitted that once the document of title are with the bank, the claim made by the petitioner merely on the basis of the agreement to sale, which is again without consideration and without possession, raises doubt about the conduct and the claim of the petitioner. He pointedly referred to the averment in plaint being Special Civil Suit No.337/2014 and submitted that he is seeking declaration for possession, which clearly make out that he is not in legal possession and, therefore, such petition may not be entertained. 10. Learned advocate, Shri shah submitted that the petitioner has already filed suit and till the said suit is decided regarding the specific performance of the agreement to sale or the possession, he cannot restrain recovery of the amount borrowed by the original borrower, the respondent no.4 herein. He further submitted that the respondent no.3-District Magistrate has passed an order considering relevant record as well as after hearing the respondent no.4, original borrower and the petitioner cannot make any grievance as he has no interest and without any right, title, interest in the secured asset, he cannot claim any right of audience or hearing. He further submitted that the respondent no.3-District Magistrate has passed an order considering relevant record as well as after hearing the respondent no.4, original borrower and the petitioner cannot make any grievance as he has no interest and without any right, title, interest in the secured asset, he cannot claim any right of audience or hearing. He submitted that when the suit was filed, the bank was not joined party and, therefore, the bank would not have any idea when the matter proceeded with the District Magistrate. Learned advocate, Shri Shah submitted that the registration of the mortgaged by deposit of title-deed is not compulsory as per the provision of Section 17 of the Registration Act. He therefore submitted that in any case, the petitioner is having an alternative remedy by way of appeal against the order of the Magistrate under Section 17 of the SARFAESI Act. 11. In rejoinder, learned advocate, Shri Sunit Shah appearing with learned advocate, Shri Gandhi submitted that the aspect about consideration has been referred to in the plaint and the registration of the mortgaged-deed is compulsory. He submitted that in any case, the possession of the premises in question was factually with the petitioner and, therefore, power under the SARFAESI Act could not have been exercised for recovery of the amount by auction sale of the premises/property in question. He, therefore, submitted that the matter may be remanded back to the Magistrate for considering on the basis of the evidence that may be produced and the impugned order may be set aside. 12. In view of these rival submissions, it is required to be considered whether the present petition is maintainable and deserves consideration. 13. The prayers as prayed for are to restrain the respondent-bank from taking any measure under the SARFAESI Act in relation to the secured assets for the advances by joining an issue that the petitioner is not borrower or the guarantor. Therefore much emphasis on this aspect is required to be considered in totality of the facts and background of the facts. It is not in dispute that the property in question is mortgaged with the bank by the original borrower. Therefore, the claim made by the petitioner that it is in their possession cannot be readily accepted. Therefore much emphasis on this aspect is required to be considered in totality of the facts and background of the facts. It is not in dispute that the property in question is mortgaged with the bank by the original borrower. Therefore, the claim made by the petitioner that it is in their possession cannot be readily accepted. If the property has been mortgaged by the borrower, the bank could always proceed for the recovery against the mortgaged property as secured assets. A close look at the papers, which have been also referred to by both the sides, would also suggest about hollowness of the claim made by the petitioner based on the agreement to sale (Kabja Vagarno Banakhat) produced at Annexure-D. The recital in the agreement to sale itself makes it clear that the agreement to sale is without any possession. Meaning thereby, the possession of the shops in question has not been given to the present petitioner by the bank. That is further confirmed from the averments of the plaint being Special Civil Suit No.337/2014 filed by the petitioner. The prayer in the suit is regarding the declaration for the possession and it has been conveniently asked for the possession, which would suggest that the petitioner is not in possession. It is clearly stated that the agreement to sale was made with an assurance to execute the sale deed and on that basis, though it is an agreement to sale (Kabja Vagarno Banakhat), it is averred that the petitioner is in possession and, thereafter, it contends that the defendant no.4 may dupe him by entering into transaction with third party and, therefore, suit has been filed. It has been specifically stated that the defendants i.e. the original owner may be restrained from transferring the shop in question, creating any third party right and may not hand over or transfer the possession or mortgage the same. Thus the claim is made on the basis of the agreement to sale, which is without possession and the plaintiff having failed in the suit has filed the present petition on the ground that there is bar of the civil court as provided under Section 34 of the SARFAESI Act. Thus the claim is made on the basis of the agreement to sale, which is without possession and the plaintiff having failed in the suit has filed the present petition on the ground that there is bar of the civil court as provided under Section 34 of the SARFAESI Act. For that purpose, learned advocate, Shri Sunit Shah has referred to the judgment of the Hon’ble Apex Court in case of Harshad Govardhan Sondagar (supra) particularly paragraph nos.32 to 35, wherein this aspect has been discussed and submitted that the petition under Article 226 of the Constitution of India would be maintainable. It is required to be mentioned that what the Hon’ble Apex Court has clarified is that when the special statute bars the jurisdiction of the civil court, it would not imply ousting the jurisdiction of the High Court under Article 226 of the Constitution of India as constitutional courts, which is a separate and individual power under the Constitution and which cannot be curtailed or affected by any other statute and, therefore, the Hon’ble Apex Court has while referring to the scheme of the SARFAESI Act has clarified. Therefore, it cannot be said that the petitioner can straightway file the petition under Article 226 of the Constitution of India, particularly, the mechanism is provided by the SARFAESI Act itself. The provision of Section 14 of the SARFAESI Act referred to the procedure before the Magistrate for taking possession of the secured asset by the secured creditor. However, Section 17 of the SARFAESI Act refers to the right to appeal. It refers to “any person (including borrower) aggrieved by ......” Meaning thereby, the Legislature has wisely provided that it is not only borrower or the guarantor but any person, who is affected or aggrieved by any such order, can make an application to the Debt Recovery Tribunal. Chapter III of the SARFAESI Act referred to “enforcement of security interest” and Section 13 provides “Enforcement of security interest”, which starts with non obstante clause. Thereafter, Section 14 of the SARFAESI Act provides for the secured creditor, who could take assistant of the Magistrate for the purpose of taking possession of the secured assets for the recovery. At that stage, Section 17 provides for an appeal, which include any person as stated above, who can make an application before the Debt Recovery Tribunal. Thereafter, Section 14 of the SARFAESI Act provides for the secured creditor, who could take assistant of the Magistrate for the purpose of taking possession of the secured assets for the recovery. At that stage, Section 17 provides for an appeal, which include any person as stated above, who can make an application before the Debt Recovery Tribunal. Again when such application is made, the procedure to be followed by the Debt Recovery Tribunal is provided in Section 17 of the SARFAESI Act and at that stage, Debt Recovery Tribunal may examine the measures referred to in Section 13(4) of the SARFAESI Act. Therefore, the petitioner, who claims any right, title, interest could have preferred an application under Section 17 of the SARFAESI Act. In fact, as stated above, the shop in question is the secured assets in favour of the bank as mortgage has been created by the borrower, the respondent no.4 herein. Therefore, the submission made by learned advocate, Shri Sunit Shah are devoid of any merits with regard to the exercise of discretion invoking jurisdiction under Article 226 of the Constitution of India, particularly when the special statute itself provides for making an application by any person. 14. Another facet of submission which has been highlighted and much emphasized reflecting the conduct of the borrower that though the property secured is a shop, no installments are paid and no actions have been taken even if the cheque is bounces, are the issues, which has no relevance and it could not be a ground to restrain the respondent-bank from taking the possession of the secured assets for realization of the debt, once it is established that the asset is secured with the bank by mortgaging the same. Nonpayment of the installment by the borrower is without any consequence inasmuch as now the bank has exercised the power under the SARFAESI Act for the recovery of the amount by sell of the secured asset. It is required to be noted at this stage that the petitioner also must prima facie show any right, title, interest in the secured asset. Admittedly, the claim for possession is made merely on the agreement to sale (Kabja Vagarno Banakhat), which is without possession as discussed above and in fact, suit has been filed by the petitioner again suggesting that the petitioner is not having any legal and valid possession. Admittedly, the claim for possession is made merely on the agreement to sale (Kabja Vagarno Banakhat), which is without possession as discussed above and in fact, suit has been filed by the petitioner again suggesting that the petitioner is not having any legal and valid possession. Moreover, when the petitioner claims possession on the basis of the agreement to sale contending that he has purchased pursuant to this agreement to sale and he is in possession, at-least some evidence with regard to the transaction has to be shown. As submitted by learned advocate, Shri Kinariwala, there is no evidence with regard to the payment of consideration. Therefore, it cannot be believed that entire transaction is by way of cash, for which, there is no evidence. 15. Again even from the averment in Special Civil Suit No.337/2004 filed by the petitioner himself, it is clear that he himself has admitted that there is no possession with him and has sought for the declaration as well as the prayer for restraining the original owner, the respondent no.4 herein that he may not create any right, title, interest in favour of the third party by transferring or by handing over possession or by mortgaging. Moreover, the observations made by the Hon’ble Apex Court in a judgment in case of Harshad Govardhan Sondagar (supra) referred to by learned advocate, Shri Sunit Shah on the contrary clearly referred to the scheme and the procedure for exercise of power under the SARFAESI Act by the secured creditor like bank. It has been observed in Paragraph No.26 that even if the possession of secured asset is with lessee even then, same could be terminated in accordance with Section 11 of the Transfer of Property Act and the District Magistrate may pass the order for delivery of possession of secured asset in favour of the secured creditor. Again it has been provided that once the order is passed by the District Magistrate, it would not be called in question in any Court or authority. Again it has been provided that once the order is passed by the District Magistrate, it would not be called in question in any Court or authority. Therefore the submission made by learned advocate, Shri Shah that as observed in this judgment, the discretion under Article 226 of the Constitution of India could be exercised the grievance is made with regard to the order of the Magistrate, is an issue with regard to the powers and discretion vested with the High Court as constitutional court and vesting of powers with the High Court under the constitution. However, it is a separate and individual aspect inasmuch as when the Magistrate has exercised the jurisdiction and power under Section 14 of the SARFAESI Act and on being satisfied passed an order, the person like the petitioner cannot have any grievance and cannot challenge the same by filing such petition under Article 226 of the Constitution of India. As stated above, before invoking jurisdiction under Article 226 of the Constitution of India, the person like the petitioner has to prima facie establish his right, title, interest in the secured assets. As stated above, the petitioner is claiming only on the basis of the agreement to sale (Kabja Vagarno Banakhat) whether admittedly the possession is not with him, which is admittedly stated in the plaint being Special Civil Suit No.337/2014 filed by the petitioner. Therefore when he is not having legal and valid possession and if in exercise of statutory power, the bank proceeds against the secured asset in exercise of statutory power, this Court would decline to interfere in exercise of discretion under Article 226 of the Constitution of India. The vesting of discretion with the higher courts or the constitutional courts under Article 226 of the Constitution of India is one thing but exercise of such discretion or discretionary jurisdiction has to be with care and circumspection. The High Court would decline to exercise such discretion when specific remedy and procedure is provided by the special statute, which is enacted to achieve specific object or purpose. The High Court would decline to exercise such discretion when specific remedy and procedure is provided by the special statute, which is enacted to achieve specific object or purpose. Therefore even though the petition could be maintainable under Article 226 of the Constitution of India challenging the order of the Magistrate in light of the observation made by the Hon’ble Supreme Court in a judgment in case of Harshad Govardhan Sondagar (supra), the Court would decline to interfere with the impugned order of the Magistrate for the reasons stated above and in background of the facts and conduct of the petitioner himself. 16. One more aspect which has been much emphasized is with regard to the registration of the mortgage-deed contending that as the mortgaged is not registered as required under Section 17 of the Registration Act, it would not be secured asset and, therefore, exercise of power under the SARFAESI Act particularly under Section 14 of the SARFAESI Act would not be justified. The provisions of the Registration Act are with regard to the registration of the document. However, the transaction of a loan or advance is a separate and individual transaction and the assets offered as and by way of surety, which is mortgaged, would be a secured asset. The equitable mortgaged by depositing of title-deeds is merely offered as a surety and, therefore, the submissions which have been made are devoid of any merits. The provision of Section 18 provides documents of which registration is optional which include an instrument which operate to create in future any right, title, interest. Therefore, the submissions which have been made by learned advocate, Shri Shah cannot be readily accepted. The submission that there is no valid subsisting security exist with the bank and, therefore, exercise of power under Section 14 of the SARFAESI Act are bad and illegal, cannot be accepted. 17. The present petition, therefore, deserves to be dismissed and accordingly stands dismissed. Notice is discharged. Petition dismissed.