The SARFAESI Act, 2002 provides an efficacious remedy for borrowers or any person affected by action under Section 13(4) by providing an appeal before the Debt Recovery Tribunal. The writ jurisdiction being equitable is discretionary in nature and should not be exercised unless there are exceptional circumstances.

JUDGMENT :

[Purushaindra Kumar Kaurav, J.]

1. The petitioner has filed this petition seeking directions against respondent No.1-Bank to release/hand-over the attached personal belongings and household articles of the petitioner.

2. The case of the petitioner is that one original borrower i.e. Mr. Vikas Aggarwal executed a registered General Power of Attorney dated 01.03.2021, in favour of Mr. Ankush Gupta in respect of property bearing No. 274, Ground Floor, Bhera Enclave, Paschim Vihar, New Delhi (property in dispute). Mr. Vikas Aggarwal stood as a mortgager. The petitioner further states that Mr. Ankush Gupta who is registered General Power of Attorney holder, inducted and allowed the petitioner and his family to reside and take care of the property in dispute. On 14.12.2022, the Chief Metropolitan Magistrate (CMM), West-District, Tis Hazari Courts, New Delhi, on an application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as SARFAESI Act, 2002) filed by the respondent No.1-Bank, passed an order appointing the Receiver to take possession of the secured asset/property in dispute. Pursuant to order dated 14.12.2022, passed by the learned CMM, the Receiver so appointed, issued a legal notice dated 17.12.2022 to borrower/mortgager for taking possession of the property in dispute on 06.01.2023.

3. Learned counsel appearing on behalf of the petitioner states that on 06.01.2023, the Receiver along with respondent No.1-Bank officials/8-10 persons came over to the property in dispute, asked the petitioner to come out with his family and stated to him that they are taking over the possession of the property in dispute. The household articles/belongings were also taken over by the Receiver so appointed. According to the petitioner, a panchnama with respect to those articles was also prepared.

4. It is the case of the petitioner that on 07.01.2021, the petitioner visited the respondent No.1-Bank's office and requested the return of household articles but the respondent No.1-Bank officials did not return those articles and neither did they give a satisfactory answer. On 23.01.2023, the petitioner served a legal notice. Since the same was of no avail, therefore, the petitioner has approached this court under Article 226 of the Constitution of India.

5. Learned counsel appearing on behalf of the petitioner further states that in view of the various provisions under the SARFAESI Act, 2002, the respondent No.1-Bank has no authority over the personal belongings/household articles of the person concerned, who is residing in the mortgaged property in dispute. He therefore, states that the entire action of the respondent No.1-Bank is dehors the provisions of the SARFAESI Act, 2002. He specifically places reliance on Section 31 of the SARFAESI Act, 2002.

6. Learned counsel appearing on behalf of the respondent No.1-Bank while placing reliance on his counter affidavit states that firstly, the petition itself is not maintainable in view of the availability of efficacious alternative remedy under Section 17 of the SARFAESI Act, 2002. Secondly, he states that notice under Section 13(2) of the SARFAESI Act, 2002 was duly served. According to him, the property in dispute was equitably mortgaged to the answering respondent and each article at the site would remain subject to the dues of the answering respondent by way of a general lien. According to the counter affidavit, the physical possession of the property in dispute has already been taken over on 06.01.2023 and any claim arising thereto, whether the same related to taking over the possession of the property in dispute or any belonging of any individual, will require proper adjudication and the same cannot be done in exercise of power under Article 226 of the Constitution of India. He, therefore, states that if the petitioner has any grievance, the appropriate remedy would lie under Section 17 of th