ORDER :

1. Heard learned advocate Mr. Rusi B. Trivedi for the petitioner.

2. By this petition under Article 226 and 227 of the Constitution of India the petitioner has prayed for the following reliefs:-

(a) To quash and set aside the order dated 13/12/2022 passed by the learned Chief Judicial Magistrate, Kadi and further quash and set aside the undated execution notice issued by the court commissioner pursuant to the order dated 13/12/2022 in the interest of justice;

(b) To stay implementation, operation and execution of order dated 13/12/2022 passed by the learned Chief Judicial Magistrate, Kadi.

3. It is the case of the petitioner that the petitioner company and the mortgager of the land in question upon which the petitioner has made construction with the respondent no.1 -Financial Institution are neighbouring businesses to each other sharing part of the secured land. It is the further case of the petitioner that the co-borrower of the amount who has mortgage the land agreed to sell the land to the petitioner in the year 1995 for Rs.1,00,000/-, however, no sale deed was executed and therefore the petitioner has preferred Civil Suit bearing No.41 of 2011 before the Court of Civil Judge, Kadi for permanent injunction.

4. Learned advocate Mr. Trivedi for the petitioner submitted that the Civil Court at Kadi passed an order on 06.11.2011 to maintain the status quo till the final disposal of the suit which is in operation.

5. It was submitted that respondent nos.2 to 8 obtained the financial assistance from the respondent no.1 by mortgaging the property though there was a status quo order granted by the Court in the year 2011. As the respondent nos. 2 to 11 could not repay the loan, the respondent no.1 declared the account of the borrowers as non performing assets (NPA) and initiated proceedings under the provisions of Securitisation And Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002 (for short “SARFAESI Act”) under Section An application under Section 14 of the Sarfaesi Act is also preferred before the Chief Judicial Magistrate, Kadi being SARFAESI Application No.597 of 2022.

6. Learned advocate Mr. Trivedi submitted that the Chief Judicial Magistrate, Kadi passed an order under Section 14 of the SARFAESI Act to provide an assistance to respondent no.1 to take the physical possession of the property in question and accordingly the notice is issued for taking the possession on 08.01.2023 at 09.30 hrs. or any time thereafter by the Court Commissioner.

7. It was also pointed out that the petitioner issued a legal notice upon the M/s Divine Veneer and Plywood Pvt. Ltd. as well as respondent nos.2 and the directors of the said company including respondent no.1 on 09.05.2022.

8. It was therefore submitted by the learned advocate for the petitioner that the impugned order passed by the Chief Judicial Magistrate, Kadi under Section 14 of the SARFAESI Act, is without issuing any notice to the petitioner as well as to the M/s Divine Veneer Pvt. Ltd., but it was issued in the name of Decent Laminate Pvt. Ltd. who is a co-borrower.

9. It was submitted that in view of the above facts, the impugned order as well as the possession notice is required to be quashed and set aside and the respondent no.1 be restrained from taking the possession of the land which is in possession of the petitioner company.

10. Having heard the learned advocate for the petitioner, it appears that the petitioner is aggrieved by the action taken by the respondent no.1 under the provisions of Section 13 of the SARFAESI Act. Section 17(1) of the SARFAESI Act reads as under:-

“17. [Application against measures to recover secured debts].—(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application along with such fee, as may be prescribed,]to the Debts Recovery Tribunal having jurisdiction in the