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Court No. - 40

Case :- WRIT - C No. - 6432 of 2017

Petitioner :- Central Bank Of India And Another

Respondent :- D.M. Farrukhaba As they d And 4 Others

Counsel for Petitioner :- Gyan Prakash Shrivastava

Counsel for Respondent :- C.S.C.

Hon'ble Manoj Misra,J.

Hon'ble Dinesh Pathak,J.

1.

The order-sheet reflects that notice was issued to

the respondents 2, 3, 4 and 5 through Registered Post A/D but

neither acknowledgment nor undelivered cover was received

back. As the notice was issued to the respondents 2 to 5 way

back in the year 2018 and neither acknowledgment nor

undelivered cover has been received back, the service of notice

on the respondents 2 to 5 is held sufficient. As they have

neither filed counter affidavit nor have engaged a counsel, we

deem it appropriate to proceed ex parte against them.

2.

We have heard learned counsel for the petitioners;

learned Standing Counsel for respondent no.1; and have

perused the record.

3.

The prayer in this petition is to quash the order,

dated 11th July, 2016, of the District Magistrate, Farrukhabad

(respondent no.1) in Case No.87 of 2015, under Section 14 of

the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (in short SARFAESI

Act), by which the application of the petitioners to take

possession of the secured asset has been rejected.

4.

Briefly stated the facts giving rise to this petition are

that a firm by the name and style of M/s Alisha Zari Art

(respondent no.2), whose partners are respondents 3 and 4,

availed credit facility from the Central Bank of India (the

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petitioner) in the year 2006 on the basis of security of

immovable property which, according to the partners of the firm,

came to them from its owner, Mumtaz Ali, under registered will

dated 12.12.1995. The account was declared Non Performing

Asset (NPA). Consequently, proceedings under the SARFAESI

Act were initiated. Thereafter, measures contemplated under

Section 13(4) of the Act were taken. To facilitate those

measures, an application under Section 14 of the SARFAESI

Act was moved before the District Magistrate, Farrukhabad for

taking possession of the secured asset. This application came

to be rejected by the impugned order of the District Magistrate,

Farrukhabad (the first respondent).

5.

A perusal of the impugned order would reflect that

the first respondent found that the sale deed of the property

(secured asset), dated 29th December, 1951, was in favour of

Mumtaz Ali, whose son is Mukhtar Ali (fifth respondent) and

grand sons are Saiyed Ashad Ali (third respondent) and Saiyed

Saif Ali (fourth respondent) whereas, the mortgage was

effected by third and fourth respondents by setting up a will,

dated 12th December, 1995, of Mumtaz Ali, which was

cancelled by a deed dated 4th January, 1997, and therefore,

the partners of M/s Alisha Zari Art, namely, Saiyed Ashad Ali

and Saiyed Saif Ali, were not the owners of the property to

effect a valid mortgage.

6.

Challenging the impugned order, the learned

counsel for the petitioners submitted that the District Magistrate

had no right to enter into the legality or otherwise of the

mortgage more so because a challenge laid to the legality of

the measures under section 13 (4) of the SARFAESI Act was

only at the instance of Naseema Begum, the mother of the

borrowers, which too, was given up, and no other person

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challenged the proceedings under the SARFAESI Act. It was

urged that no original document to show that the alleged will

was cancelled by deed dated 4th January, 1997 was brought

on record. Therefore, once it is the admitted case of the other

side that the original owner is dead and that he had executed a

registered will in favour of the mortgagor, in absence of credible

evidence of its cancellation, there was no justification to reject

the application under section 14 of the SARFAESI Act. To

buttress