The District Magistrate lacks jurisdiction to recall an order under Section 14 of the SARFAESI Act, and the representation of the deceased's estate by one legal heir justifies the enforcement of the possession order.

JUDGMENT

M.S. Ramachandra Rao, J. - In this Writ petition the petitioner has challenged order dt. 24.05.2018 (P7) passed by the District Magistrate, Kaithal (Respondent No.2).

2. The Back Ground Facts

3. The Writ petitioner is a financial institution.

4. Respondent No.5, his deceased mother, namely, Saroj Rani and family members had availed loan against property for an amount of Rs. 28,39,988/- vide loan agreement dt. 28.5.2016.

5. To secure the said loan, the above referred borrowers had created security interest over their residential property and some agriculture land by way of equitable mortgage of deposit of title deeds in favour of the petitioner.

6. On account of default by the borrowers, their loan account was declared as Non Performing Asset (NPA) by the petitioner on 08.05.2017.

7. Thereafter a demand notice dt. 24.07.2017 (P2) under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for short 'the SARFAESI Act'] was issued through speed post to respondent No.5 and his late mother (during her lifetime), demanding total outstanding of Rs. 31,48,379/-, which was outstanding and demanded a payment of the same within 60 days of the demand notice.

8. But the borrowers did not discharge their liability and symbolic possession of the Secured Assets was taken on 02.12.2017 by issuance of notice (P4) under Section 13(4) of the SARFAESI Act.

9. Actual possession could not be taken by the authorized officer of the petitioner and so the petitioner filed an application under Section 14 of SARFAESI Act before the District Magistrate, Kaithal (respondent No.2) on 12.02.2018 for seeking assistance in taking the possession of the said Secured Asset.

10. The said application was allowed by respondent No.2 on 02.05.2018 (P5) and respondent No.2 appointed the Sub Tehsildar (respondent No.3) to take possession of the Secured Asset with the assistance of the concerned police and to forward it to the petitioner.

11. In the meantime, on 17.3.2018, the mother of respondent No.5 Saroj Rani passed away but, this fact was not within the knowledge of the petitioner, and so it could not bring it to the notice of respondents No.2 & 3 before passing of the order dt.02.05.2018 (P5).

12. According to the petitioner, it came to know about the death of the co-borrower Saroj Rani only when the respondents filed their reply on 27.08.2018 to CWP-16875-2018, filed by the petitioner earlier.

13. The petitioner contends that it also came to know from the filing of the said reply in that Writ petition that respondent No.2 had passed a subsequent order dt.24.05.2018 (Annexure P7) asking respondent No.3 to return the original order dt.02.05.2018 (P5) passed by respondent No.2 and thus, the proceedings initiated under Section 14 of SARFAESI Act came to be halted.

14. Counsel for the petitioner contended that there is no provision under the Act to review or to recall an order passed by the District Magistrate because such a power has not been conferred under the SARFAESI Act. He also placed reliance on the order passed by the Gujarat High Court in Prime Cooperative Bank Limited Vs. District Magistrate/Chief Metropolitan Magistrate, MANU/GJ/0801/2009 wherein, the Gujarat High Court held that after passing of an order under Section 14 of SARFAESI Act, the District Magistrate becomes functus officio and he cannot reopen a concluded issue. It is, therefore, contended by petitioner that respondent No.2 could not have recalled his order dt. 02.05.2018/07.05.2018 (P5) vide its order dt.24.05.2018 (P-7).

15. Written statement of respondents No.1 to 3

16. In the written statement filed on behalf of respondents No.1 o 3, it is contended that the warrant dakhal was called back in view of the application filed by Sukhbir Singh, husband of the borrower Saroj Rani intimating to the District Magistrate, Kaithal that Saroj Rani had died and it was felt that it is not appropriate to pass a warrant against a dead person. It i