ORDER :

1. Heard learned advocate Mr. Yogesh G. Kanade for the petitioner.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 24.08.2022 passed by the Chief Metropolitan Magistrate, Ahmedabad in Criminal Miscellaneous Application No. 4159 of 2021 filed by the respondent No. 2 under Section 14 of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’).

3.1 The brief facts of the case are that the petitioner purchased the property situated at Tenement No. 4, admeasuring 147.50 Sq. Meters in the scheme named Jalnath Co-operative Housing Society Limited forming part of the Final Plot No. 32, T.P. Scheme No. 6, Sub Plot No. 5/B of Mouje Paldi Sub District-Ahmedabad-4 (Paldi) and Registration District Ahmedabad for Rs. 14,00,000/- and paid various amount of payments qua purchasing the said property between 17.04.2010 to 08.07.2010 to the respondent Nos. 3, 4 and 5.

3.2 It is the case of the petitioner that the petitioner is therefore the owner of the property in question. The petitioner also filed a Civil Suit No. 207 of 2018 for execution of the sale deed by the respondent No. 5 and for permanent injunction. The City Civil Court, Ahmedabad by order dated 27.07.2021 partly allowed the Notice of Motion at Exhibits 6-7 as both the parties admitted the possession of the petitioner over the suit property and therefore, the defendant was directed not to dispossess the petitioner out of the suit property without the due process of law.

3.3 The respondent no. 5 also preferred an application under Order VII Rule 11 of the Code of Civil Procedure in the said Suit which was rejected by the City Civil Court, Ahmedabad vide order dated 18.04.2018.

3.4 It appears that respondent nos. 3,4 and 5 obtained loan against the property from respondent no. 2 amounting to Rs. 22,00,000/-. As the respondent nos. 3 to 5 failed to make the repayment of dues, the account was classified as Non Performing Asset (NPA) on 29.02.2020. Respondent no. 2 issued notice under section 13(2) of the SARFAESI Act on 18.06.2021 calling upon the respondent nos. 3 to 5 to pay Rs. 28,13,952.21 as outstanding dues on the said date.

3.5 As respondent nos. 3 to 5 who have mortgaged the aforesaid property to respondent no. 2 failed to make payment, respondent no. 2 preferred an application under section 14 of the SARFAESI Act being Criminal Miscellaneous Application No. 4159/2021 in the Court of Chief Metropolitan Magistrate, Ahmedabad to avail the assistance for getting possession of the secured mortgaged property.

3.6 The Chief Metropolitan Magistrate, Ahmedabad by order dated 24.08.2022 allowed the Criminal Miscellaneous Application No. 4159/2021 preferred by respondent no. 2.

3.7 It appears that pursuant to the aforesaid order passed under section 14 of SARFAESI Act, respondent no. 2 took physical possession of the property from the petitioners on 6.11.2022.

4.1 Learned advocate Mr.Kanade for the petitioner submitted that the petitioner was never the party before the Chief Judicial Magistrate in the proceeding under Section 14 of the SARFAESI Act and therefore, the impugned order passed by the Chief Judicial Magistrate under Section 14 of the SARFAESI Act is not binding upon the petitioner. It was submitted that in spite of the said fact, the petitioner has been dispossessed on 6th November, 2022 by the respondent No. 2 who is a secured creditor of the property in question.

4.2 It was submitted by learned advocate Mr. Kanade that the impugned order is violative of principles of natural justice as no opportunity was afforded to the petitioner before passing the impugned order.

4.3 It was further submitted by learned advocate Mr. Kanade that the impugned order is violative of Constitutional right of the petitioner in terms of Article 300A of the Constitution of India and in such circumstances, this petition is required to be entertained by