IMPORTANT POINT
Possession of mortgaged property – Section 14 of SARFAESI Act, 2002 does not involve adjudicatory process qua points raised by borrower against secured creditor/bank taking possession of secured assets – Magistrate has to adjudicate and decide correctness of information given in application and nothing more.

JUDGMENT

Ajoy Kumar Mukherjee, J.—The instant Application Under Article 227 of the constitution of India has been preferred against the order dated 04th August, 2023 passed by the learned Debt Recovery Appellant Tribunal (in short DRAT) Kolkata in Misc. Appeal No. 06 of 2023. Petitioners’ case in brief is that the petitioners filed an application under section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (herein after called as SARFAESI Act, 2002) being SA 25 of 2021 before the learned Debt Recovery Tribunal (in short DRT) Siliguri challenging the classification of the petitioners loan Accounts as non performing assets and also against measures taken by the opposite party/Bank under section 13 (2) and 13(4) of the SARFAESI Act, 2002 with regard to the mortgaged property of the petitioners.

2. During pendency of the said application before the Tribunal, the opposite party/bank filed an application under section 14 of the SARFAESI Act 2002 before the District Magistrate Jalpaiguri for taking physical possession of the mortgaged property of the petitioners. By the orders dated 05.01.2023 and 16.02.2023, the District Magistrate, Jalpaiguri was pleased to pass order under section 14 of the said Act in favour of the Bank for taking physical possession of the mortgage property of the petitioners.

3. Being aggrieved by that order, the petitioner filed an interim application being I.A. No. 130 of 2023 before the self-same Tribunal contending that despite the fact of payment of certain amount to the bank authority, there was no occasion for the Bank to declare the loan account of the petitioners as non performing assets (NPA). It was further alleged in the said interim application that the Reserve Bank of India (RBI) directed to grant moratorium of six months in respect of installments falling due between March 01, 2020 and August, 31st 2020 and the 90 days NPA norm was directed to be excluded for the said period and there was an asset classification standstill during that period but the Bank authorities ignoring all these have initiated proceedings under section 13 of the said Act against the petitioners.

4. It is further alleged that the District Magistrate did not record in his aforesaid order as to whether the secured creditor/ defendant bank has submitted any affidavit accompanied with the application under section 14 of the SARFAESI Act duly affirmed by the authorized officer of the secured creditor containing the 9 (Nine) points as specifically laid down under the first proviso to section 14 (1) of the SARFAESI Act. In support of said intervening application it was further argued that the satisfaction of the magistrate as required under section 14(1) is to examine the factual correctness of the assertions made in such an affidavit, but not the legal niceties of the transaction. Unfortunately it is apparent from the said order passed by the District Magistrate that there is no whisper of 9(Nine) points on affidavit or the satisfaction thereof. In absence of reflection of any recording of satisfaction in the order itself, makes such order ex facie illegal.

5. Petitioner’s further case is after contested hearing the DRT by an order dated 10.04.2023 was pleased to allow the petitioner’s intervening application and set aside the aforesaid order of taking possession of secured Asset passed by the learned District Magistrate. Being aggrieved by that order dated 10.04.2024, the opposite party herein/Bank preferred an appeal before the learned DRAT, Kolkata being, Misc. Appeal No. 6 of 2023. Learned DRAT by the impugned order has been pleased to set aside the order dated 10th April, 2023 passed by the learned DRT, Siliguri, in aforesaid I.A. No. 130 of 2023 in connection with SA 25 of 2021 on the very first date of hearing, in the absence of present petitioners and without giving any opportunity to the petitioner herein to file their written objection.

6. Mr. Mishra learned