JUDGMENT

Vinay Joshi , J. - Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel appearing for respective parties.

2. By this petition filed under Article 226 of the Constitution of India, the petitioners seek to challenge the impugned communication dated 07.09.2022 issued by respondent No. 3 Tehsildar and Executive Magistrate in pursuance of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act').

3. The facts leading to the filing of the petition are as under:-

4. Petitioner Nos. 1 to 5 are flat purchasers, whilst respondent No. 5 M/s. Swapnil Promoters and Developers Pvt. Ltd. is builder who has developed and constructed apartment in the name and style as Swapnil Trisha Apartment (Navketan Co-operative Housing Society), situated at Plot No. 126-A, Buty Layout, Laxmi Nagar, Nagpur. Petitioners have purchased respective residential flat from respondent No. 5 Developer under registered agreement to sell and power of attorney. Some of the petitioners have availed loan for purchasing respective flats. On the basis of registered agreements, revenue entries have been taken as well as the electric meters were obtained in their name. Learned counsel for petitioners would submit that the petitioners are bonafide purchasers for value and possession was delivered to them on payment of valuable consideration.

5. It is petitioners' case that that the impugned communication has been pasted on the respective flats by the respondent No. 3 Tehsildar intending to take possession of subject flats. The said order was passed in pursuance of Section 14 of the SARFAESI Act, on the ground that respondent No. 5 Builder has failed to pay the outstanding loan availed from respondent No. 4 Creditor Bank. According to the petitioners, the authority has not followed the prescribed procedure for taking possession in terms of Section 14 of the SARFAESI Act. Moreover, the order has been passed in violation of the principles of natural justice, as the petitioners have not been heard.

6. Respondent No. 4 Creditor Bank has resisted the petition vide its reply dated 03.11.2022. At the inception, objection has been raised to the maintainability of the writ petition on the premise that equally efficacious remedy under Section 17 of the SARFAESI Act is available. It is the case of respondent No. 4 Creditor Bank that, respondent No. 5 builder/borrower availed loan/credit facility from the Bank. The loan was secured by executing equatable mortgage dated on 30.03.2015. Secured interest within the meaning of Section 2(zf) of the SARFAESI Act has been created in respect of the subject property, which became secured assets within the meaning of Section 2(zc), in favour of secured creditor (the Bank) within the meaning of Section 2(zd). It is the contention of Bank that alleged agreements are not binding on the secured creditor, as those have been executed during the subsistence of mortgage.

7. Respondent No. 4 Bank contended that irrespective of sufficient opportunity, the loan account of borrower was not regular and became a non-performing asset ('NPA'). Since the borrower committed default, the Bank has issued notice dated 30.01.2017 in terms of Section 13(2) of the SARFAESI Act, directing borrower to discharge the liability within the stipulated period of 60 days. In response, though the borrower has paid certain installments, however there was failure on their part to comply demand notice. The Bank has taken symbolic possession of the secured asset on 30.01.2018. The borrower has approached to the Debt Recovery Tribunal ('DRT'), in which he was directed to deposit certain sum in equal installments. The parties have arrived at settlement, however as per terms recorded before the DRT, the borrower failed to pay.

8. The Bank has approached to the District Magistrate in terms of Section 14 of the SARFAESI Act for taking possession. On verifying the claim of secured credi