IMPORTANT POINT
The Court established that the District Magistrate's obligation to assist in possession is contingent upon the secured creditor's compliance with statutory application requirements under Section 14 of the Act of 2002.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. A. Ganguly, the learned counsel appearing on behalf of the Petitioner and Mr. N. Goswami, the learned Government Advocate appearing on behalf of the Respondent Nos. 1, 2 and 3. I have also heard Mr. G. R. Dutta, the learned counsel appearing on behalf of the Respondent No.4. It is also taken note of that the Respondent No.5 is the wife of the Respondent No.4.

2. The Petitioner herein has approached this Court being aggrieved by the inaction on the part of the District Magistrate to take action in terms of Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (for short “the Act of 2002”).

3. The facts as can be discerned from the materials on the record are that the Respondent Nos. 4 and 5 had taken financial assistance from the Petitioner Bank. Upon failure on the part of the Respondent Nos. 4 and 5 to make payment, the account of the Respondent Nos. 4 and 5 were declared to be non-performing assets and subsequently steps were taken in terms with Section 13 of the Act of 2002. The Petitioner Bank while taking steps under Section 13(4) of the Act of 2002 issued a possession notice over a plot of land which was a secured asset having House No.76, Holding No.336, 1st Link Road main, Ward No.15, Silchar in the District of Cachar – 788006, Assam standing over a plot of land measuring 8 Kathas 18 Gondas covered by Dag No.113, Patta No.27 Vill/Pargana - Barakpur, Mouza Kanakpur Part-II, District Cachar.

4. Pursuant to the issuance of the possession notice whereby symbolic possession was taken, the Petitioner Bank approached the Respondent No.2 in terms of Section 14 of the Act of 2002. The Respondent No.2 thereupon had taken action and handed over the possession of the said secured asset to the Petitioner Bank. It is the case of the Petitioner Bank that the Petitioner Bank after taking possession over the secured asset had kept it under their possession by keeping certain security persons. However, it is alleged that the Respondent Nos. 4 and 5 with their persons have forcefully taken the possession over the secured asset. It is under such circumstances, an FIR was filed before the Officer-in-Charge of Silchar Police Station which was registered and numbered as Silchar P.S. Case No. 2302/2022 under Section 120B/448/188 of the Indian Penal Code. In addition to that, the Petitioner Bank also sought the assistance of the Respondent No.2 for again taking over the possession by submitting certain representations. However, as the Respondent No.2 did not take any steps, the Petitioner Bank has approached this Court by filing the instant petition.

5. This Court pursuant to filing of the instant writ petition issued notice on 22.11.2023. On various dates, instructions have been sought for, however nothing has been placed before this Court on behalf of the Respondent Nos. 2 and 3. It is however noticed that the Respondent Nos. 4 and 5 have filed an affidavit-in-opposition on 01.08.2024. In the said affidavit-in-opposition, it has been mentioned that a suit has been filed by the Respondent No.4 before the Court of the Civil Judge, No.1, Cachar at Silchar which have been registered and numbered as Title Suit No.163/2022 along with an injunction application being Misc. (J) Case No.205/2022. It has been further mentioned that in the said injunction application which is Misc. (J) Case No.205/2022,

6. Balkrishna Rama Tarlay, (Dead through LRS) Vs. Phoenix Arc the learned Trial Court i.e. the Court of the learned Civil Judge, No.1 Cachar at Silchar had issued an order on 29.03.2023 thereby appointing a Local Commissioner to conduct such investigation and submit a report to the Court as to whether the building in question is in the suit property or in the mortgaged property of the Bank. However, there is nothing mentioned as regards issuance of any injunction order.

6. I have heard the learned counsels appearing on behalf of the parties.

7. Mr. A. Ganguly,