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.

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 or causes being shown and after hearing the parties make the Rule absolute and/or pass such further or other order(s) as Your Lordships may seem fit and proper in the facts and circumstances of the instant case.”

2. This writ petition came up for consideration before this Court for the first time on 19.02.2025, when this Court, after hearing the learned senior counsel for the petitioner, opined that the petitioner is having an alternative and efficacious remedy to approach the Debts Recovery Tribunal under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as the “SARFAESI Act”) against the measures taken by the respondent bank under the provisions of the SARFAESI Act.

3. At that time, Mr. D. Das, learned senior counsel appearing for the petitioner argued that the petitioner is not covered under the expression “any person” used in Section 17(1) of the SARFAESI Act and, therefore, he cannot avail the remedy of approaching the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. In the alternative, Mr. Das also submitted that the remedy under Section 17 is not an efficacious remedy and, therefore, the only remedy available with the petitioner is to approach this Court by way of filing a writ petition under Article 226 of the Constitution of India. Mr. Das also argued that in the facts and circumstances of the present case, the provisions of the SARFAESI Act has no application in the case of the petitioner and on this ground also the matter requires consideration by this Court under Article 226 of the Constitution of India.

4. Having considered those submissions of Mr. D. Das, learned senior counsel appearing for the petitioner and taking into consideration the fact that the petitioner did not avail loan facility from the HDFC Bank for purchasing a flat nd located at 2 Floor of Orchid Residency, situated at Milanpur Road, Chandmari, Guwahati, Kamrup (Metro), Assam and he purchased the property from the respondent No.8, which as per the petitioner, was free from all encumbrances, we decided to issue notice to the respondent Nos.3, 4 & 5, i.e. the authorities of the HDFC Bank, seeking clarification from them.

5. The brief facts of the case are that the respondent Nos.6 & 7 applied for availing a home loan of Rs.36,50,000/- from the HDFC Bank Limited nd (respondent No.3) for purchasing a flat located at the 2 Floor of Orchid Residency, situated at Milanpur Road, Chandmari, Guwahati, Kamrup (Metro), Assam (hereinafter to be referred as the “property in question”). The respondent Nos.6 & 7 submitted application before the HDFC Bank stating that 90% of the work of the said building, in which the property in question is situated, is already completed and the HD