Point in Issue :
Whether on request of secured creditor District Magistrate can refuse assistance on ground that secured has failed to prove that he is secured creditor.

S.J. Mukhopadhaya, CJ.—This writ petition has been preferred by IDBI Bank Ltd. (hereinafter referred to as “the bank”) against the order dated 21.9.2010 passed by the District Magistrate, Mehsana in MCC Case No. 1 of 2010.

2. By the impugned order, the District Magistrate, Mehsana held that the bank failed to prove that it is a secured creditor and thereby came to the conclusion that the application filed under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the Securitization Act”) is not tenable and thereby rejected the application.

3. The case of the bank is that respondent Nos. 1 and 2 – borrowers have taken financial assistance from the petitioner – bank on 15.9.1990 and executed necessary documents on 26.11.1991 to secure the credit facility taken by them. On 31.3.1996, the respondent – borrowers having defaulted in repaying the outstanding dues, their account was classified as Non-performing Assets (NPA). The bank moved before the Debt Recovery Tribunal under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which is registered as O.A. No. 99 of 1998 and is pending. Meanwhile, the bank took steps under the Securitization Act and issued notice to the respondent – borrowers on 5.11.2009 under Section 13(2) of the said Act, which the borrowers refused. The said notice was also published in two daily newspapers on 2.12.2009. The respondent – borrowers raised objections on 9.1.2010 and the bank decided the same on 18.1.2010. Since the respondent – borrowers failed to repay the dues, the bank demanded peaceful physical possession of the mortgaged property which having refused, the bank filed an application under Section 14 of the Securitization Act before the District Magistrate, Mehsana seeking police assistance to take possession of the mortgaged property.

The District Magistrate, Mehsana on 21.9.2010, after notice to the parties, held that the bank has failed to prove that it is a secured creditor and refused to assist the bank.

4. The learned Counsel for the petitioner would submit that the District Magistrate has no jurisdiction to adjudicate the dispute while the assistance is sought for under Section 14 of the Securitization Act.

5. The respondent – borrowers have appeared and supported the stand taken by the District Magistrate.

Mr. Mihir Thakore, learned Senior Advocate appearing on behalf of the respondent – borrowers would contend that the District Magistrate had not made any adjudication or decision on merit, but merely required the bank to produce the original title deeds for simply verifying the existence of the fact of secured assets claimed by the bank. He referred to two judgments delivered by a learned Single Judge of this Court in two different cases in support of his case, viz. (i) unreported decision dated 3.3.2008 passed in the case of Dena Bank vs. The District Magistrate, in SCA No. 3943 of 2008 and (ii) the decision in the case of Authorized Officer, Canara Bank vs. Sulay Traders through Bipin Kantilal Vakta, reported in 2010 (1) GLR 770. It is stated that the judgment in the case of Dena Bank was also affirmed by a Division Bench of this Court by order dated 10.7.2009 passed in Letters Patent Appeal No. 877 of 2008.

6. We have heard the learned Counsel for the parties and perused the record.

7. From the affidavit in reply filed by the respondent – borrowers, it will be evident that they have not disputed the fact of having taken financial assistance from the bank. In the affidavit, though it is stated that the bank has failed to produce any document to show the existence of equitable mortgage and/or the original title deeds, but there is no specific denial made that the property in question is not a secured property. Only in the written submissions, a plea has been taken that the bank is not holding any original title deeds of the property in question and thus has