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TMI Blog2022 (1) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... /petitioners. Then bank claims to have taken symbolic possession of the secured assets by affixing notice on 12.10.2017 and made paper publication to that effect on 17.10.2017 and copy of such notice was received by borrower on 20.10.17. Once a notice is issued to the borrower under section 13(2) and if he fails to comply with the notice within the stipulated period, in view of clause (a) of sub-section (4) of section 13, the secured creditor is entitled to take possession of the secured assets of the borrowers. It can, thus, be seen that once the secured creditor is entitled to take possession in view of the provisions of sub-section (4) of section 13, the only thing it is required to do is to make an application in writing to the District Magistrate or the Chief Metropolitan Magistrate for taking possession of the secured assets. In the present case the Secured Creditor to take possession of the secured assets has sought help of the District Magistrate Howrah as provided under Section 14 of the Act. However, according to a proviso to sub-section (1) of Section 14 of the Act, the authorized officer of the secured creditor is required to affirm an affidavit regarding certain facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a security have mortgaged their eight properties situated in the district of Howrah, three properties situated at Kharagpur in the District of West Medinipur and one property situated at Baranagar, in the District North 24 Parganas in favour of the Bank. The petitioners not only defaulted in payment of loan amount as per terms and conditions of the agreement but also made the bank to pay its income tax. Therefore, bank finding no other alternative classified the accounts of the borrowers as non-performing asset and issued notice under section 13 (2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(here in after referred as SARFAESI Act) demanding due sum of rupees 25.65 corer on 09.11.2016. It has been alleged objection was sent against such notice, but Bank did not bother to respond the same. The bank further issued fresh notice under Section 13 (2) SARFAESI Act, 2002 on 15.05.2017. The petitioners submitted their objection and reply was sent on 02.08.17. Then Bank took symbolic possession of those twelve secured assets on 12.10.2017 and made paper publication to that effect on 17.10.2017. Challenging notice under Section 13(2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India were filed by the borrowers sometime in September 2021. Remedy under Article 226 and Article 227 are different. However, it has been contended by learned advocate for the borrowers that even if the statutory remedy is provided under the statute, it does not take away the power of superintendence enshrined under Article 227 of the Constitution of India and if the orders under challenge ex facie appear to be a nullity which strikes at the root of the jurisdiction. Be that as it may, let see whether orders impugned suffer from illegality and material irregularities. It is the case of the petitioner that the District Magistrate, Howrah, without adhering to the principle of natural justice and in the absence of petitioner passed order under Section 14 of the SARFAESI Act, 2002 on 02.08.18 and which was never communicated to the petitioners. The petitioners have come to know about the same only when the police personnel of Liluah Police Station went to take physical possession of the same on 27.07.2021. First let us see what is the law and steps that need to be taken by a Secured Creditors against defaulter borrowers whose account has been classified as non-perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d creditor is entitled to take possession of the secured assets of the borrowers. It can, thus, be seen that once the secured creditor is entitled to take possession in view of the provisions of sub-section (4) of section 13, the only thing it is required to do is to make an application in writing to the District Magistrate or the Chief Metropolitan Magistrate for taking possession of the secured assets. In the present case the Secured Creditor to take possession of the secured assets has sought help of the District Magistrate Howrah as provided under Section 14 of the Act. However, according to a proviso to sub-section (1) of Section 14 of the Act, the authorized officer of the secured creditor is required to affirm an affidavit regarding certain facts about the borrower and the secured assets. On receipt of such affidavit the District Magistrate after satisfying the contents of the affidavit, pass suitable orders for the purpose of taking possession of the secured assets with in a period of thirty days from the date of application. If the two conditions stipulated in section 14 are satisfied, then the District Magistrate has no other option but to take steps for taking possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite of notice. The jurisdiction of the District Magistrate under Section 14 of the Act, is only with a limited jurisdiction that is to see whether the property is secured asset or not and executionary in nature. Therefore, District Magistrate cannot take role of a DRT and put borrower a notice before passing any order under Section 14 of the Act. Section 14(3) clearly provides no Act of Chief Metropolitan Magistrate or Chief Judicial Magistrate or District Magistrate can be challenged in any Court or before any authority. Section 17(1) clearly provides any person being aggrieved by any measure taken under Section 13(4) by the secured creditor or his authorized officer has to file an application to the DRT having jurisdiction in the matter within 45 days from the date which such measure has been taken. In the present case the petitioner has filed I.A. No. 1437 of 2021 on 29.07.2021 in S.A. No. 228 of 2017 before DRT Kolkata, challenging the order passed by the District Magistrate, Howrah under Section 14 of the SARFAESI Act, 2002 on 02.08.2018 and the same was rejected by the DRT, Kolkata being bared by limitation and having been filed beyond the period of 45 days on 11.08.2021. Th ..... 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