The availability of remedies under Section 17 of the SARFAESI Act for guarantors/sureties, and the distinction of their position from that of a lessee, influenced the court's decision.

JUDGMENT :

AUGUSTINE GEORGE MASIH, J.

Challenge in this writ petition is to the order dated 09.03.2021 (Annexure P-20) passed by the District Magistrate, Gurugram, Haryana respondent No.1 whereby the application of M/s India Bulls Housing Finance Limited-respondent No.2 preferred under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Act”) has been allowed and the Duty Magistrate has been appointed to deliver the possession of the immovable property/secured assets as described in the said order within a period of one month from the date of the order.

2. It is the contention of learned counsel for the petitioners that the petitioners were the sureties/guarantors for the loan granted to the International Coil Limited (ICL), which obtained four loans as detailed in para 2 of the writ petition. Petitioners had tendered guarantee of their assets, which included Villa No.26, Block-Z, Tatvam Villa, Vipur World, Sector-48, Gurugram-122002, Haryana and Villa No.18, Block-Z, Tatvam Villa, Vipur World, Sector-48, Gurugram-122002, Haryana, which is a subject matter of the present writ petition as the order dated 09.03.2021 relates to this property. Notices served under the SARFAESI Act earlier under Section 13(4), which were challenged by the petitioners by filing CWP No.22078 of 2020 titled as Paramjeet Singh and another Versus M/S India Bulls Housing Finance Limited and others, which came up for hearing before this Court on 21.12.2020 (Annexure P-17), which was dismissed by passing the following order:-

“1. Mr. Vineet Jakhar, learned Counsel for the Petitioners is unable to satisfy the Court on why the Petitioners should not be relegated to pursue their statutory remedies under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 before the Debts Recovery Tribunal.

2. The Court is accordingly not inclined to exercise its discretionary jurisdiction under Article 226 of the Constitution, to interfere in the matter at this stage.

3. Leaving it open to the Petitioners to exhaust the statutory remedies available to them in accordance with law, the petition is dismissed.”

3. After the passing of the said order, petitioners approached the Debts Recovery Tribunal-II, Delhi, by filing SA No.4 of 2021 and SA No.5 of 2021. The said Tribunal granted interim protection to the petitioners vide order dated 12.02.2021 (Annexures P-18 and P-19) respectively. During the interregnum, respondents filed an application under Section 14 of the SARFAESI Act before the District Magistrate, Gurugram, for taking possession of the secured assets, which belong to the petitioners, who are sureties/guarantors. The said application has been allowed vide order dated 09.03.2021 (Annexure P-20) vide which the possession of the secured assets i.e. immovable properties have been ordered to be taken and handed over to the respondents. It is this order, which has been challenged by the petitioners asserting that when there was an interim order passed by the Debts Recovery Tribunal-II, Delhi, the said order could not have been passed by the District Magistrate, Gurugram.

4. Counsel for the petitioners asserts that the order under Section 14 of the SARFAESI Act could not have been passed by the District Magistrate, Gurugram, especially in the light of the fact that the matter was pending before the Debts Recovery Tribuanl-II, Delhi and an interim order has been passed.

5. To an objection raised by this Court with regard to the petitioners approaching this Court by way of the present writ petition, especially when the matter is pending before the Debts Recovery Tribunal- II, Delhi, as also keeping in view the earlier order dated 21.12.2020 (Annexure P-17) passed by this Court, counsel for the petitioners asserts that the petitioners have no remedy but to approach this Court by way of the present writ petition under Article