IMPORTANT POINT
Possession of the secured asset can be taken by the secured creditor before confirmation of sale of the secured assets as well as post confirmation of sale.

JUDGMENT

Hiranmay Bhattacharyya, J.—This application under Article 227 of the Constitution of India is at the instance of the borrowers and is directed against a judgment and order dated August 30, 2024 passed by the Debts Recovery Appellate Tribunal at Kolkata in Misc Appeal No. 17 of 2024.

2. By the judgment and order impugned, the order dated January 16, 2024 passed by the learned Debts Recovery Tribunal-III, Kolkata in S.A No. 229 of 2023 was set aside and the secured creditor was given liberty to proceed in accordance with law.

3. The predecessor-in-interest of the petitioners namely Sailendranath Ghosh availed overdraft facilities for Rs. 300.00 lakhs from the opposite party/bank. Since there was failure on the part of the petitioners to repay the loan amount, notice under Section 13(2) and 13(4) of the SARFAESI Act, 2002 was issued. Proposal for one time settlement was also made which did not materialize. Thereafter, the opposite party/bank filed an application under Section 14 of the SARFAESI Act, 2002 and the District Magistrate, 24 Parganas (South) at Alipore passed an order on 6th October, 2023 under Section 14 of the SARFAESI Act, 2002 directing the Inspector-in-Charge, Tiljala Police Station to take necessary action. Subsequently, the District Magistrate, 24 Parganas (South), Alipore passed another order dated November 28, 2023 directing the Inspector-in-Charge of the Pragati Maidan Police Station to take necessary action.

4. Challenging the recovery proceedings, petitioners filed an application under Section 17 of the SARFAESI Act, 2002 before the learned Debts Recovery Tribunal-III, Kolkata (for short “DRT”) which is registered as S.A. No. 229 of 2023. In connection with the said SARFAESI Application, the petitioners filed an Interlocutory Application being I.A. 3645 of 2023 praying for stay of operation of the order dated November 28, 2023 passed by the District Magistrate, 24 Parganas (South). The learned DRT disposed of the Interlocutory Application being I.A. no. 3645 of 2023 thereby allowing the prayer for stay of operation of the orders dated 06.10.2023 and 28.11.2023, both passed by the District Magistrate 24 Parganas (South), Alipore and restrained the opposite party/bank from taking any coercive steps in respect of the secured property on the basis of the impugned orders dated 06.10.2023 and 28.11.2023 passed by the District Magistrate without the leave of the Tribunal till the next date of hearing. Being aggrieved by such order the opposite party/bank preferred an appeal before the learned Debts Recovery Appellate Tribunal, Kolkata (for short “DRAT”) which was registered as Misc Appeal no. 17 of 2024. The learned DRAT, by a judgment and order dated August 30, 2024, allowed the said appeal thereby setting aside the order dated January 16, 2024 passed by the learned DRT thus giving liberty to the secured creditor to proceed in accordance with law.

5. Being aggrieved by the order dated August 30, 2024 passed by the learned DRAT dated August 30, 2024 the borrowers have approached this Court under Article 227 of the Constitution of India.

6. Mr. Saptansu Basu, learned Senior Advocate appearing for the petitioners contended that the District Magistrate became functus officio after passing the order dated October 6, 2023 and, therefore, the subsequent order passed the District Magistrate on November 28, 2023 is illegal, void, ab initio and non est in the eye of law. Mr. Basu contended that an application under Section 14 of the SARFAESI Act by the secured creditor shall have to be accompanied by an affidavit affirmed by the authorized officer of the secured creditor declaring the nine points as specifically mentioned under Section 14(1) of the 2002 Act. He further contended that the District Magistrate is under a statutory obligation to verify the contents of the said affidavit and upon being satisfied with the correctness of the contents of the said affidavit pass orders for the purpose of taking possession o