IMPORTANT POINT
S. 13 of SARFAESI Act does not provide that lease in respect of secured asset will get determined, when secured creditor decides to take measures in said section.

Satish K. Agnihotri, J.—The petitioners, claiming to be tenants of ‘Sri Lakshmi Krishna Nivas’, Coimbatore, have come up with these writ petitions, questioning their eviction from the premises on 08.11.2014 pursuant to the order dated 04.09.2014 passed by the District Magistrate and District Collector in exercise of powers under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (For short ‘SARFAESI Act’).

2. All the writ petitioners are similarly situated being tenants in the common building. Thus, all writ petitions are being considered and decided by a common order.

3. The case of the petitioners before us is that the building in question, namely, ‘Sri Lakshmi Krishna Nivas’, appears to have been mortgaged as security by the owners/borrowers with the second respondent Bank. A demand notice under Section 13(2) of the SARFAESI Act was issued on 12.6.2013. Thereafter, symbolic possession notice was issued under Section 13(4) of the SARFAESI Act on 19.8.2013. Subsequently, notice for putting the property in question on auction was published in the newspaper on 20.11.2013 for auction to be held on 23.12.2013. The second respondent Bank preferred an application under Section 14 of the SARFAESI Act before the District Magistrate and District Collector, without impleading the petitioners/tenants as party respondents and also without informing the petitioners about the action taken against the borrowers. It appears that the petitioners have preferred an application for interim relief in the pending S.A.No.48 of 2014 filed by the borrowers, before the Debts Recovery Tribunal, Coimbatore. The interim relief to an extent of returning back the essential items, i.e., books, dress materials, jewels, etc., was passed by the Debts Recovery Tribunal. It transpires that one more S.A.No.228 of 2013 has been filed earlier by the borrowers before the Debts Recovery Tribunal, Coimbatore, seeking declaration that the e-auction notice was unjust and illegal. We do not propose to pass any order on merits leaving open the same to be considered by the Tribunal on merits.

4. The instant writ petitions have been filed, questioning the order of taking possession under Section 14 of the SARFAESI Act, on the ground that the District Magistrate and District Collector, without considering the requirement of provisions of law and without affording an opportunity of hearing to the petitioners/tenants of the building in question, had passed the impugned order.

5. On the other hand, the learned counsel appearing for the second respondent Bank would submit that in order to recover the secured amount, the property in question, which was the secured asset, was put in auction and even possession has been handed over to the auction purchasers. The petitioners/tenants have not taken steps at the relevant time immediately after the notice of e-auction was published in the newspaper on 20.11.2013. Thus, the petitioners cannot be permitted to question the order dated 4.9.2014 passed by the District Magistrate and District Collector under Section 14 of the SARFAESI Act.

6. None appeared for respondents 3 and 4 /auction purchasers despite service of notice.

7. We have heard the learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

8. Section 14 of the SARFAESI Act enables secured creditor to make an application for possession of any secured asset before the Chief Metropolitan Magistrate or the District Magistrate, as the case may be. In the instant case, the competent officer is the District Magistrate. The first proviso to Section 14 prescribes that the application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor declaring as under :

(i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application;

(ii) the borrower h