The main legal point established in the judgment is that allegations of fraud and misrepresentation must be supported by compelling evidence, and contentions regarding the creation of a valid mortgage and the limitation of the application should be raised in the appropriate legal proceedings.

JUDGMENT :

A.S. DOCTOR, J.

1. The present Writ Petition, impugns:

(i) an order dated 9th February, 2017 (“the Impugned Order”) passed by Respondent No. 2 (the District Magistrate, Thane) under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and

(ii) two notices dated 27th March, 2017 (“the first impugned notice”) and 9th February, 2021 (“the second impugned notice”) both issued by Respondent No. 4 (Tahsildar/Executive Magistrate, Thane District).

By the impugned order, Respondent No. 2 has directed Respondent No. 4 to take possession inter-alia of flat numbers 201 and 301 in the Harbansh Apartment Building, situated, at Shirvane Village, Nerul, Navi Mumbai, Taluka and District Thane (“the said flats”). By the impugned notices Respondent No. 4 has called upon Petitioner to hand over possession of the said flats failing which Respondent No. 4 would take forcible possession of the same.

A Brief Overview

2. The facts of the present case lie within a very narrow compass. Petitioner claims ownership and possession of the said flats. Conversely Respondent No. 5 claims that the said flats were mortgaged by one Yogesh Prabhakar Ahire and Prabhakar Namdeo Ahire (“Borrowers”) as security for a loan granted by ICICI Bank (“ICICI”) to the Borrowers. The said flats were thus secured assets as more particularly defined under the provisions of the SARFAESI Act. Respondent No. 5 is the assignee of the said loan and is thus a secured creditor as defined under the SARFAESI Act. Since the Borrowers defaulted making due repayment of the said loan, Respondent No. 5 in its capacity as secured creditor adopted steps for enforcement of its security interest under Chapter III of the SARFAESI Act. A notice under Section 13 (2) of the SARFAESI Act came to be issued by Respondent No. 5 to the Borrowers despite which Borrowers did not discharge in full their liability under the said loan agreement. It was thus that Respondent No. 5 filed an Application under Section 14 of the SARFAESI Act (“the said Application”) before Respondent No. 2 seeking the assistance of Respondent No. 2 in recovering possession of its secured assets.

3. The genesis of “the dispute” (i.e. basis of the present Writ Petition) is the stand taken by Respondent No. 5 in the Affidavit filed by Respondent No. 5 (“the said Affidavit”) in support of the said Application. Paragraph 5 of the said Affidavit is for ease of reference reproduced below:

“5. I say and submit that, in consideration to the said credit/home loan facilities granted to the Respondents by the Assignor of the Applicants, the Respondents have created security interest over the said Secured Asset by way of mortgage by deposit of the title Deeds and also deposited original title deeds of the Secured Asset with the Assignor of the Applicant with an intention to secure due repayment of the credit facilities granted to the Respondents. The Applicants further state and submit that, the Respondents have acknowledged the creation of security interest by a valid mortgage over the said Secured Asset by way of executing Declaration/s and that the Applicants is holding a valid and subsisting security interest over said Secured Asset and the claim of the Applicant is within the limitation period.”

It is Petitioners case that Respondent No. 5 has made false statements on oath in the aforesaid paragraph and “has obtained” the impugned order on the basis of these false statements. It is Petitioners case that these false statements amount to fraud and misrepresentation and it is thus that Petitioner has approached this Hon’ble Court invoking its inherent and extraordinary jurisdiction under Article 226 of the Constitution of India despite the availability of an alternate remedy.

Relevant Facts

4. Petitioner has annexed and relied upon copies of several agreements for sale in support of its contention that Petitioner is the owner of the said flats. Petitioner also cla