ORDER :

1. By this application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“(a) Be pleased to quashed and set aside the order dated 9.9.2002 passed by the Ld. Additional Sr. Civil Judge, Surat in CRMA/2700/2022 and intimation dated 17.11.2022 issued by Court Commissioner, Surat u/s 14 of the SARFAESI Act in the interest of justice.

(b) Pending admission, hearing and final disposal of this petition stay the implementation and operation of the order dated 9.9.2022 passed by the Ld. Additional Sr. Civil Judge, Surat in CRMA/2700/2022 and intimation dated 17.11.2022 issued by Court Commissioner, Surat u/s 14 of the SARFAESI Act in the interest of justice.

(c) Grant such other and further relief as thought fit in the interest of justice.”

2. The petitioner herein has challenged the order passed under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) by referring this petition.

3. It is the case of the petitioner that the respondent Union Bank of India sanctioned the Home Loan of Rs. 24 Lakhs to purchase the residential premises in the year 2012. It appears that the petitioner has committed default in payment of the outstanding dues of the respondent No. 3-Bank and therefore the respondent-Bank has initiated action under the provisions of the SARFAESI Act by issuing notice under section 13(2) thereof and thereafter has taken action under sub section 4 of the Section 13 of the SARFAESI Act. It appears that the respondent-Bank thereafter preferred application No. 2700 of 2022 before the Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat for getting assistance under Section 14 of the SARFAESI Act to acquire the physical possession of the mortgaged property invoking the provision of Section 13(4) of the SARFAESI Act. The respondent No. 1-Additional Chief Judicial Magistrate, Surat by the impugned judgment and order dated 09.09.2022 has allowed the application filed by the respondent-Bank.

3.1 Learned advocate Ms. Kruti Shah with learned advocate Mr. Yogesh Kanade for the petitioner submitted that in the impugned order the respondent No. 1-Additional Senior Civil Judge and Additional Chief Metropolitan Magistrate, Surat has not taken into consideration the provisions of Section 14 of the SARFAESI Act. It was submitted that though the respondent had ordered to take the possession of the mortgaged residential property of the petitioner on 04.12.2022, the same was postponed for 8 days.

3.2 It was submitted that the petitioner therefore has no efficacious remedy though it has alternative remedy under Section 17 of the SARFAESI Act. It was submitted on merits that the petitioners have never been served with the notice under Section 13(2) of the SARFAESI Act by the respondent-Bank and the impugned order and intimation dated 17.11.2022 for taking possession on 04.12.2022 is only served on the last moment and the copy of the same was also faint or illegible. It was submitted that the respondent-Bank had also not complied with the provisions of Section 14 of the SARFAESI Act as the respondent-Bank failed to disclose before the Magistrate that the proper procedure was followed for the purpose of service of the demand notice as well as the action taken under the provisions of Section 13(4) of the SARFAESI Act. It is further submitted that the Court below has not recorded its satisfaction to pass the impugned order while allowing the application under Section 14 of the SARFAESI Act.

3.3 Learned advocate for the petitioner placed reliance on the decision of the Apex Court in the case of Standard Chartered Bank vs. V. Noble Kumar, (2013) 9 SCC 620 wherein the Apex Court has held that the satisfaction of the Magistrate contemplated under second proviso to Section 14(1) necessarily requires the Magistrate to examine the factual correctness of the assertion made in such an affidavit but