The main legal point established in the judgment is that any person affected by the action taken under Section 13(4) or Section 14 of the SARFAESI Act, 2002, including third parties such as guarantors or family members, has an efficacious remedy under Section 17 of the Act.

JUDGMENT :

1. The present writ petition has been filed for quashing the order as contained in memo no.15 dated 7th January, 2022 passed by the District Magistrate-cum-Deputy Commissioner, Saraikella-respondent no.2 in SARFAESI Case no.35 of 2021-22, whereby physical possession of the land appertaining to plot no.96, new Khata no.271, old Khata no.50, portion of new plot no.1254 corresponding to old plot no.267 of village Bhatia, P.S. Adityapur, District Saraikella-Kharsawan has been taken irrespective of the fact that the said land over which a house has been constructed is the only residence of the petitioner (mother of the borrower-Manoj Kumar Sharma and widow of Late Ramdip Sharma- guarantor of the loan).

2. Mr. Pratyush Kumar, learned counsel for the respondent nos.4 and 5, submits that the present writ petition is not maintainable as the petitioner has the efficacious/statutory/alternative remedy under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as ‘the SARFAESI Act, 2002’).

3. Having heard learned counsel for the parties and on going through the contents of the writ petition, it appears that the petitioner has challenged the impugned order dated 7th January, 2022 passed by the respondent no.2, who, on request made by the secured creditor, has ordered to take physical possession of the said property by invoking power under Section 14 of the SARFAESI Act, 2002, which is in consequence of the symbolic possession of the property taken by the Bank under Section 13(4) of the said Act. The Hon’ble Supreme Court in the case of United Bank of India Vs. Satyawati Tondon & Ors., reported in (2010)8 SCC 110, has held as under:

“42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.”

4. Further, in the case of Standard Chartered Bank Vs. Noble Kumar & Ors., reported in (2013)9 SCC 620, the Hon’ble supreme Court has held as under:-

“27. The “appeal” under Section 17 is available to the borrower against any measure taken under Section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under Section 13(4). Alienating the asset either by lease or sale, etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, Section 14 authorises the Magistrate only to take possession of the property and forward the asset along with the connected documents to the borrower (sic the secured creditor). Therefore, the borrower is always entitled to prefer an “appeal” under Section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under Section 14. We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contem