IMPORTANT POINT
CMM or DM is not entitled to adjudicate rival claims while deciding application u/s 14

Ashok Bhushan and Shyam Shankar Tiwari, JJ.— Heard. Sri Vipin Kumar Saxena, learned counsel for the petitioners, Sri P.C. Srivastava, learned counsel for respondent Nos. 2 & 3 and Sri Vishnu Pratap, learned Standing counsel appearing for respondents No.1.

2. Counter affidavit has been filed by the respondent Nos. 2 & 3 to which rejoinder affidavit has also been filed. Counter and re-joinder affidavits have been exchanged. With the consent of learned counsel for the patties, the writ petition is being disposed of finally.

3. By this writ petition, the petitioners have prayed for quashing of the order dated 25.3.2010 passed by State District Magistrate by which he had stayed his earlier order dated 15.2.2010 on an application dated 5.3.2010 submitted by the respondent Nos.2 & 3.

4. Brief facts of this case which have emerged from the parties are; that the petitioner No.1 has been extending finance facility to the customers from its various branches including petitioner No.2. Cash credit facility was granted to the respondent No. 2 for an amount of Rs.4,00,000. The respondent No. 2 created security interest in favour of the bank by depositing partition deed of shop No.99 at Sabzi Mandi Chawk, Allahabad and partition deed as property No. 134 as well as hypothecating the stock. The bank, on default being committed, issued a notice under Section13 (2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called ‘Act, 2002’) on 21.9.2004. The possession notice was issued in exercise of power under Section 13(4) of the Act, 2002 on 31.1.2006. The respondent No.2 under Section 17 of the Act, 2002 approached the Debt Recovery Tribunal by filing SA No.18 of 2006. The Debt Recovery Tribunal disposed of the application by the order dated 15.5.2006. The SA No.18 of 2006 was dismissed by the Tribunal. The bank, after passing of the said order of the Tribunal, filed an application under Section 14 of the Act before the District Magistrate, Allahabad for taking possession. The District Magistrate passed an order on the application submitted by the bank on 15.2.2010 directing for taking possession of the Shop No.99 and to use necessary police force. The said order passed by the District Magistrate was challenged by the respondent No.2 by writ petition No.10587 of 2010 which writ petition was dismissed by the order dated 26.2.2010 by the Division Bench of this Court. Subsequent to order dated 26.2.1010 dismissing the writ petition filed by the respondent No.2, an application dated 5.3.2010 has been filed before the District Magistrate by which prayer was made to recall the earlier dated 15.2.2010. On the said application an interim order was passed by the District Magistrate on 25.3.2010 which has been challenged in the present writ petition. By this writ petition, following prayers have been made:

“1. Writ, order or direction in the nature of Certiorari quashing the order dated 25.3.2010 passed by the District Magistrate, Allahabad in case No.44 of 2010.

2. Writ, order or direction in the nature of mandamus commanding the respondent No. 1 to dispose off the application dated 5.3.2010 filed by the respondent No.2 as well as the objections filed by the petitioners on 29.4.2010 on the next date fixed in the case.

3. Issue, any other suitable writ, order or direction as this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

4. Award the cost of the petition in favour of the petitioner.”

5. A detailed counter affidavit has been filed by respondent Nos. 2 & 3 to which rejoinder affidavit has been filed.

6. Learned counsel for the petitioners submits that application and appeal of respondent Nos. 2 and 3 filed under Section 17 of the Act, 2002 having already been dismissed, the bank rightly invoked the power of the District Magistrate under Section 14 of the Act on whose application an order was issued by the District Magistrate on 15.2.2