A secured creditor is entitled to take actual physical possession of a secured asset under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and is not under any statutory obligation to follow the process of Section 14.

ORDER :- The four petitioners have taken out this writ petition for various reliefs, though their principal grievance is that possession of Flats 9D and 8B at premises No. 25B, Camac Street, Kolkata-700 016 was obtained by the Bank forcibly and without following the due process of law, that is, without following the process mentioned in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, S. 14, and hence a mandamus should be issued commanding restoration of possession.

2. The first petitioner owed the Bank around rupees three crore. Alleging that it was not liquidating the debt, the Bank issued notice under S. 13(2) dated August 3rd, 2005. In response the first petitioner submitted representation dated September 14th, 2005. Disposing of the representation the Bank sent its reply dated September 28th, 2005. Thereupon the bank issued a notice dated May 25th, 2006 under S. 13(4) of the Act. On the same day authorised officer took possession of the Flats. An inventory was prepared, and that was signed by the third petitioner.

3. The petitioners claim that alleging forcible dispossession they lodged a first information report with the police authority concerned on May 31st, 2006. By a letter dated June 3rd, 2006 the Bank requested the first petitioner to liquidate the debt. The fact of taking possession and preparation of inventory was mentioned in that letter. By a letter dated June 8th, 2006 the first petitioner bettered its offer. It requested the bank to settle the matter and restore possession of the Flats. By a reply dated June 15th, 2006 the Bank offered to settle the matter on the terms mentioned therein. The petitioners did not accept the proposal and took out this writ petition dated June 21st, 2006.

4. By order dated June 30th, 2006 the writ petition was admitted. Against refusal of interim relief the petitioners preferred an appeal, which was disposed of by the Division Bench by order dated July 12th, 2006. Their Lordships made an interim order that the Flats should not be disposed of by the Bank. The petitioners were given liberty to remove their movables from the Flats. A supplementary affidavit has been filed by the petitioners annexing photographs to show that possession of the Flats had been taken by applying force.

5. Counsel argues that on the facts of the case the petitioners were entitled at once to approach the writ Court, though they were entitled to prefer an appeal before the Debts Recovery Tribunal in terms of provisions in S. 17 of the Act. Admittedly they did not prefer any appeal. It is contended that in view of provisions of S. 14 the Bank was not empowered and entitled to take possession of the Flats unless an appropriate order was obtained from the Chief Metropolitan Magistrate or the District Magistrate. On the strength of a Division Bench decision of the Punjab and Haryana High Court in M/s. Kalyani Sales Co. v. Union of India, AIR 2006 P and H 107, counsel has contended that under S. 13(4) only symbolic possession of the Flats could have been taken.

6. It has been contended that when provisions in S. 14 cast a statutory obligation on the Bank to follow a particular process for taking actual physical possession, it was not empowered and entitled to take possession through any other process. Counsel has said that by dispossessing the petitioners without following the process mentioned in S. 14 the Bank infringed their fundamental right guaranteed by Art. 21 of the Constitution. His submission is that such criminal activities as were indulged in by the bank should be stopped, since it is not contemplated by any provision of the Act that a secured creditor would be empowered or entitled to take actual physical possession of any secured asset by applying force.

7. The Bank has categorically denied the allegation that it took possession of the Flats by applying force. In opposition it has stated that possession was taken not only in presence of independent

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