ORDER

1. Encore Asset Reconstruction Company Private Limited (in short “ARC”) is before Court seeking writ of mandamus to respondent No.3 to comply with the order passed by the Collector on 31st August 2020 under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter shall be referred to as the “SARFAESI Act”) to take physical possession of the mortgaged assets; immovable properties described in the said order and forward such assets to the petitioner.

2. Before adverting to the prayer so made, it is expedient to observe that the Allahabad Bank, the secured creditor, after service of notice to the borrower, as contemplated under section 13 (2) of the SARFAESI Act called upon the borrower/Intervener to make good the payment of outstanding dues towards the loan account declared NPA and after having not received the payment due from the borrower, approached the Collector filing an application under section 14 of the Act for taking possession of the mortgaged property detailed in order dated 31.8.2020 and forward such assets/mortgaged property to it.

3. Respondent No.2 after ensuring compliance of the requirement as adumbrated under section 14 of the SARFAESI Act has passed the order on 16.1.2019. It may be stated that during pendency of proceedings on 27.12.2018, the mortgaged assets in question were transferred to the petitioner company by assignment deed dated 27.12.2018. However, there was no repayment of the loan by the defaulter borrower and the mortgage assets were also not transferred physically to the petitioner-ARC. As a result, the petitioner approached the Collector filing an application under section 14 of the SARFAESI Act, whereupon the order dated 31.8.2020 (Annexure P/1) has been passed for the relief as prayed for in the Writ Petition and referred to in the preceding paragraphs.

4. Shri Praveen Surange, learned counsel for the petitioner submits that after acquisition of the rights and interests in the mortgaged assets in question from the secured creditor on 27.12.2018, the petitioner has acquired the status of lender i.e. Allahabad Bank in the instant case by virtue of the provisions as contained under sub section (2) of section 5 of the SARFAESI Act, which reads as under :-

“(2) If the bank or financial institution is a lender in relation to any financial assets acquired under subsection (1) by the asset reconstruction company, such asset reconstruction company shall, on such acquisition, be deemed to be the lender and all the rights of such bank or financial institution shall vest in such company in relation to such financial assets.”

and entitled to secure physical possession of the mortgaged property.

5. Inaction on the part of the respondent No.3 despite specific directions of the Collector in the order dated 31.8.2020, has compelled the petitioner to approach this Court seeking writ of mandamus.

6. Shri Ankur Mody, learned Additional Advocate General fairly submits that if the order dated 31.8.2020 has not been complied with by the respondent No.3- Tehsildar, the petitioner may approach the respondent No.2 – Collector for ensuring execution of the order.

7. Shri Praveen Surange, learned counsel for the petitioner submits that unless there is a mandatory direction issued by this Court, the aforesaid suggestion of the learned Additional Advocate General may not enure to the benefit of the petitioner, as well evident from the fact that despite the order dated 31.8.2020 so far mortgaged assets have not been handed over to the petitioner.

8. Regard being had to the provisions of sub section (1) (a) and (b) 14 of the SARFAESI Act quoted below :-

14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. - (1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured