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2023 Supreme(MP) 206
IN THE HIGH COURT OF MADHYA PRADESH
Rohit Arya and Sanjeev Kalgaonkar, JJ.
Poonawalla Housing Finance Limited @ Previously Known as Magma Housing Finance Limited v. Raju Haidari
Miscellaneous Petition No. 485 of 2023 (G); Decided on 13.6.2023
Vivek Jain and Ajay Sharma for petitioner.
Headnote:
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss. 13(2), 13(4), 14 and 34 -- Security Interest (Enforcement) Rules, 2002 -- R. 3 -- default in repayment of debt by private respondents -- financial institution initiated proceedings to take physical possession of mortgaged properties for recovery of outstanding dues -- track details of summon of notice produced with proof -- service of notice proved -- producing register of dispatch and receipt not required -- order of CJM declining application of financial institution for physical possession of property on ground that service of notice not proved -- polluted with illegality tantamoun to improper exercise of jurisdiction -- quashed -- direction to CJM to proceed with aforesaid application on merits. AIR 2011 Bom. 163 referred to. [Paras 9 & 11]
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ORDER
1. This Misc.Petition filed under Article 227 of the Constitution of India arise out of the impugned order dated dated 16.11.2022 (Annexure P/2) passed by the learned Chief Judicial Magistrate, Gwalior, in the proceeding initiated by the petitioner 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).
2. Brief facts relevant for disposal of this Mis. Petition are to the effect :
(a) Petitioner financial institution invoked section 13 (2) of the SARFAESI Act for recovery of the outstanding dues against private respondents due to default in repayment of debts. Thereafter invoking section 34 of the SARFAESI Act, the petitioner made efforts to take possession of the properties mortgaged for realisation of the debt.
(b) Having failed to take possession, the petitioner approached the Chief Judicial Magistrate under Section 14 of the SARFAESI Act.
(c) The Chief Judicial Magistrate declined to invoke his jurisdiction under Section 14 of the SARFAESI Act for physical possession of the properties named in the application purportedly for the reason the petitioner failed to prove service of notice upon the private respondents/borrowers as contemplated under section 13 (2) of the SARFAESI Act read with rule 3 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the Rules, inasmuch as the petitioner did not produce the dispatch register to show the number by which notices were issued and received by the borrowers. The CJM sought to justify the aforesaid reasoning with the judgment of the Bombay High Court in the case of International Asset Reconstruction Company Pvt. Ltd v. Union of India and others reported in AIR 2011 Bombay 163.
3. Shri Vivek Jain with Shri Ajay Sharma, learned counsel for the petitioner while taking exception to the impugned order submits that the CJM has misdirected himself in the matter of exercise of jurisdiction under section 14 of the SARFAESI Act as well as failed to consider the requirement of issue of demand notice as contemplated under section 13 (2) of the SARFAESI Act read with Rule 3 of the rules. Further elaborating his submissions, learned counsel submits that requirement of rule 3 of the rules in the context of demand notice as referred to in sub section (2) of section 13 is to place on record the evidence of delivery including hand delivery or transmission of notice at the place where the borrower or his agent, empowered to accept the notice or documents on behalf of the borrower etc. In the instant case, notices to each of the borrowers have been separately issued by the speed post. A copy of the notices is annexed as Annexure P/6 at page 87 of the petition. Besides, the envelop containing the said notices bore separate docket number and date of dispatch, the details of which are quoted below:
| Raju Hadary | S/D/W of Kudrat Ali Rahamat Nagar Gosipura Steshan Drp Laeen Lashkar Madhya Pradesh 474012 | SAR-2882 | 28.5.2022 | Notice dated 25.5.2022 | RW 9421562071N |
| Raju Hadary | Survey No. 365, 367, 369 Ward No. 38, Village Kota Lashkar Gwalior 474012 | SAR-2882 | 28.5.2022 | Notice dated 25.5.2022 | RW 942156198IN |
| Raju Beverage
| S/D/W of Shiv Nagar Opposite Kreshar Colony Ghosipura Gwalior 474012 | SAR-2882 | 28.5.2022 | Notice dated 25.5.2022 | RW 942156184IN |
| Meenu Haideri
| S/D/W of Raju Haideri Rahmat Nagar Gosipura Steshan Drp Laeen Lashkar Madhya Pradesh 474012 | SAR-2882 | 28.5.2022 | Notice dated 25.5.2022 | RW 942156175IN |
4. That apart, from page 94 to 97 of the Misc. Petition, the postal track details of each of the noticees supplied by the department of Post, Ministry of Communications, Government of India, clearly indicate that each of the noticees was served with the notice. These documents were anne
