Mr. Ram Swaroop Dubey Vs. the State of Madhya Pradesh Judgement Given By: Hon'ble Shri Justice Sanjay Yadav - Court Judgment

Writ Petition No.19376/2013.

25.2.2014.

Shri Atul Choudhary, learned counsel for petitioner.

Heard on admission.

Petition is directed against the order-dated 3.9.2013 passed by District Magistrate, Raisen; whereby, in exercise of his powers under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "2002 Act") has directed the petitioner to hand over the possession of his residential home situated at Ward No.2 P.C.No.17 Udaipura District Raisen.

That, the house in question was purchased on the financial assistance extended by GRUH Finance Limited and was duly mortgaged with the company in lieu of the security.

Failure on the part of the petitioner to clear the dues has rendered the credit facility as non-performing asset, leading the respondent no.2, the financer, to initiate action under Section 13 of 2002 Act.

That, in furtherance thereto, an application under Section 14 of 2002 Act was filed before the District Magistrate, Raisen.

Section 14 of 2002 Act empowers the Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.

The District Magistrate after following the procedure as laid down, directed for possession by impugned order in favour of respondent no.2.

It is this order which is being questioned on various grounds.

That, on 27.11.2013 the petitioner was called upon as to why in view of the provisions contained under the 2002 Act for :: 2 :: Writ Petition No.19376/2013.

redressal of grievance, the writ petition under Article 226 of the Constitution of India is preferred.

The matter was adjourned at the request of learned counsel for the petitioner.

Again on 13.1.2014, the counsel sought adjournment to address on maintainability.

It is in furtherance to these ordeRs.the matter is posted today.

Though, it is contended that the grounds on which initiation of action by respondent no.2 under Section 14 of the 2002 Act is being questioned could not be decided by the Tribunal as to whether the Finance Company like the respondent no.2 is a "secured creditor" under the 2002 Act.

However, taking into consideration the fact that the order impugned has been passed in purported exercise of power under Section 14 and as held in United Bank of India v.

Satyawati Tondon AIR2010SC3413that - "17...If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1).The expression 'any person' used in Section 17(1) is of wide import.

It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14.

Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule.

It is thus evident that the remedies available to an aggrieved person under the :: 3 :: Writ Petition No.19376/2013.

SARFAESI Act are both expeditious and effective.

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." - the present writ petition, under Article 226 of the Constitution of India, is not tenable as the petitioner can avail the remedy before Debt Recovery Tribunal.

The petition is, accordingly, dismissed.

However, no costs.

(SANJAY YADAV) JUDGE vinod