The main legal point established is that an order passed under Section 14 of the SARFAESI Act may be challenged under Section 17, and that the availability of an alternate efficacious remedy may lead to the dismissal of a petition.

JUDGMENT :

The challenge in this petition is made to an order dated 12.09.2022, passed by the respondent no.1, the District Magistrate, Udham Singh Nagar (“the District Magistrate”) under Section 14 of the, The Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 (“SARFAESI Act”). The petitioner also seeks directions to the respondent no.2, the State Bank of India (“the bank”) to open the lock of the residential house of the petitioner no.2 and permit the family of the petitioner no.2 to reside in the house.

2. Heard learned counsel for the parties and perused the record.

3. It is the case of the petitioner that the petitioner no.1 has taken loan from the bank; the bank proceeded under the provisions of the SARFAESI Act and by the impugned order, the District Magistrate passed an order on 12.09.2022 for taking possession of the secured assets.

4. It is the case of the petitioner that correct figures and dates were not placed before the District Magistrate. The wrong dates of NPA was given. The figures were wrong. The District Magistrate while passing the impugned order did not verify the details and the facts of the case.

5. It is also argued that under the statue an order on the application under Section 14 of the SARFAESI Act is to be passed within one month of the SARFAESI Act, at the most within two months, but in the instant case the order was passed after 09 months and one year thereafter, the secured assets have been taken into possession by the respondent-bank. It is argued that the entire proceedings are bad in the eyes of law.

6. At the very outset the Court wanted to know, as to why the instant petition be entertained and why the petitioner should not approach the authority under Section 17 of the SARFAESI Act for redressal of his grievances in view of the law laid down by the Hon’ble Supreme Court.

7. Learned counsel for the petitioner would submit that in the case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited and Others, (2014)6 SCC 1, Hon’ble Supreme Court has held that, “the decision of the Chief Metropolitan Magistrate or the District Magistrate can be challenged before the High Court under Articles 226 and 227 of the Constitution by any aggrieved party and if such a challenge is made, the High Court can examine the decision of the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, in accordance with the settled principles of law.”

8. Learned counsel for the petitioner would also submit that the SARFAESI Act does not provide for challenge of an order passed under Section 14 of the SARFAESI Act and if, there is any interpretation by the higher Courts on that aspect that may not be construed as a statue and it may not override the provisions of the SARFAESI Act. In support of this contention learned counsel has placed reliance on the principle as laid down in the case of M/S Amar Nath Om Prakash and others Vs. State of Punjab and others, AIR 1985 SC 218, wherein in para 11 of the judgment the Hon’ble Supreme Court observed that the judgments of the courts are not to be construed as statues, in fact, it has been so observed in a context in para 10 of the judgment, the Hon’ble Supreme Court observed as hereunder:-

“10. There is one other significant sentence in Sreenivasa General Traders v. State of A.P (supra) with which we must express our agreement, It was said “With utmost respect, these observations of the learned Judge are not to be read as Euclid's theorems, nor as provisions of a statute. These observations must be read in the context in which they appear.” We consider it proper to say, as we have already said in other cases, that judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do