JUDGMENT

G.S. Sandhawalia, J. (Oral)

The present petition was filed for seeking physical possession of mortgaged property in a time bound manner keeping in view the order dated 20.11.2020 (Annexure P-2) passed under section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 (for short `the Act'), which was not executed in favour of the Bank. On 27.04.2023, the following order was passed:-

"During the course of the proceedings, it transpires that notice under Section 13 (4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 dated 24.09.2020 (Annexure P-4) was also subject matter of challenge in SA No.27 of 2021, but in spite of that the same was dismissed on 29.09.2022 (Annexure P-6) by the Presiding Officer of DRT-II, Chandigarh by observing as under:-

"This SA was directed against possession notice dated 24.09.2021 (sic. 24.09.2020) and it has been brought to the notice of this Tribunal that in pursuance of that possession notice, possession was never taken. It is also brought to the notice of this Tribunal that as on date, no proceeding of taking physical possession of the property in question is in progress. In these circumstances, as on date there is no proceeding under section 13 (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which is sine qua non for the proceedings under Section 17 (1) of the Act. Therefore, it is beyond comprehension how this SA can survive. Therefore, this SA warrants to be dismissed as infructuous and it is ordered accordingly. File be consigned to the record room after due compliance."

Prima facie we are of the considered opinion that the order is patently illegal as the SA was directed against the possession notice dated 24.09.2020, which would be clear from the body of the said SA, which was also appended as Annexure A-25 therein. A perusal of the possession notice would also go on to show that symbolic possession had been duly taken under Section 13 (4) read with Rule 8 on 24.09.2020 and, therefore, the learned Presiding Officer of the Tribunal was totally re-miss in holding to the contrary.

The Apex Court in M/s Hindon Forge Pvt. Ltd. and another v. State of Uttar Pradesh through District Magistrate Ghaziabad and another, 2018 AIR SC 5383 had thrashed out the provisions of the 2002 Act and come to the conclusion that the possession under Section 13 (4) would mean physical possession or symbolic possession. In the said case an argument was raised that the possession of the secured asset would continue to be with the borrower when only symbolic possession was taken. The said argument was rejected by noticing that under Section 13(4)(a) there is a right to transfer the property by way of lease and also by way of assignment or sale for releasing the secured asset when possession is taken under Rule 8 (1) and (2) of the Security Interest (Enforcement) Rules, 2002 and even if no actual physical possession is taken there is a right of transfer the secured asset. Relevant portion of the said judgment reads as under:-

"18. Another argument that was raised by learned senior counsel for the respondents is that the taking of possession under section 13(4)(a) must mean actual physical possession or otherwise, no transfer by way of lease can be made as possession of the secured asset would continue to be with the borrower when only symbolic possession is taken. This argument also must be rejected for the reason that what is referred to in section 13(4)(a) is the right to transfer by way of lease for realising the secured asset. One way of realising the secured asset is when physical possession is taken over and a lease of the same is made to a third party. When posse