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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Vijay Bishnoi, N. Unni Krishnan Nair
Apurba Dev Sarma, Son of Late Keshab Chandra Sarma – Appellant
Versus
District Magistrate, Kamrup (Metro), Guwahati, Assam – Respondent
JUDGMENT & ORDER :
Vijay Bishnoi, CJ.
The petitioner has filed this writ petition seeking the following relief:-
“In the premises aforesaid, the petitioners pray that Your Lordships may be pleased to call for the records, issue Rule calling upon the respondents to show cause as to why
1. A writ in the nature of Mandamus shall not be issued declaring that the respondent authorities have no jurisdiction, authority and sanction under law to initiate proceeding under SARFAESI Act, 2002 against the flat purchased by the petitioner vide Deed No.19669 dated 27.09.2023.
2. A writ in the nature of Certiorari shall not be issued setting aside and quashing the entire proceeding initiated by the respondent authorities under SARFAESI Act, 2002 so far relating to the flat of the petitioner.
3. A writ in the nature of Certiorari shall not be issued setting aside and quashing the notice dated 01.02.2025 issued by the Addl. District Magistrate, New Guwahati Co-District, Kamrup (M) under the provision of the SARFAESI Act, 2002.
4. A writ in the nature of Mandamus shall not be issued directing the respondent bank not to disturb the possession of the petitioner in respect of flat in question.
-AND-
Upon cause
A security interest can be created under the SARFAESI Act through a tripartite agreement, and the term 'any person' in Section 17(1) includes all aggrieved parties.
A secured creditor retains rights over a property until actual possession is transferred, despite a sale certificate being issued to an auction buyer, as affirmed by the court.
Civil Courts have jurisdiction in SARFAESI Act matters only when the secured creditor has not initiated actions under the Act. Limitation laws apply strictly to such actions.
The main legal point established in the judgment is the limitation on civil court jurisdiction under Section 34 of the SARFAESI Act and the duty of the court to scrutinize allegations of fraud and co....
The court emphasized the legislative intent to minimize judicial intervention until the stage of Section 14 of the SARFAESI Act and highlighted the availability of statutory remedies under the Act, h....
Court held that transactions made during the subsistence of a mortgage are void under the SARFAESI Act; the auction purchaser's rights were upheld despite challenges to the validity of earlier transf....
For the purpose of attracting Section 31(i) of SARFAESI Act, property in question ought to be actually used as agricultural land at the time when security interest was created.
Finality of a prior judgment bars new proceedings under the SARFAESI Act when based on the same invalid security, reinforcing jurisdictional limits of financial institutions.
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