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AFR

Court No. - 5

Case :- MATTERS UNDER ARTICLE 227 No. - 1760 of 2019

Petitioner :- Kashi Gomti Samyut Gramin Bank And Another

Respondent :- Chief Judicial Magistrate And 4 Others

Counsel for Petitioner :- Gyan Prakash Shrivastava

Counsel for Respondent :- C.S.C.

Hon'ble Ashok Kumar,J.

Heard Sri Gyan Prakash Shrivastava, learned counsel for the

petitioners.

The instant petition has been filed by the petitioner Kashi Gomti

Samyut Gramin Bank through its Regional Manager/ Authorized Officer by

which the petitioner has challenged the order passed by the Chief Judicial

Magistrate, Azamgarh in Case No. 3562 of 2019 dated 08.02.2019. By the

order dated 08.02.2019 the petitioner's application for taking the possession

of the immovable property against the loan sanctioned by the petitioner is

rejected on the ground that the same is not maintainable.

The submission of the counsel for the petitioner is that the impugned

order of the Chief Judicial Magistrate is illegal and bad, as similar power is

vested with the Chief Judicial Magistrate as is vested in Metropolitan City

with Chief Metropolitan Magistrate.

Learned counsel for the petitioner has submitted that Section 14 of the

Securitisation And Reconstruction of Financial Assets And Enforcement of

Security Interest (SARFAESI) Act, 2002 clearly provides the power with the

Chief Metropolitan Magistrate or the District Magistrate to assist secured

creditor in taking possession of secured assets.

For the convenience, the provision of Section 14 (1) and 14(2) of

SARFAESI Act, 2002 are produced herein below:-

Section 14. Chief Metropolitan Magistrate or District

Magistrate to assist secured creditor in taking possession of

secured asset.- (1) Whether the possession of any secured

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asset is required to be taken by the secured creditor or if any

of the secured asset is required to be sold or transferred by

the secured creditor under the provisions of this Act, the

secured creditor may, for the purpose of taking possession or

control of any such secured asset, request, in writing, the

Chief Metropolitan Magistrate or the District Magistrate

within whose jurisdiction any such secured asset or other

documents relating thereto may be situated or found, to take

possession thereof, and the Chief Metropolitan Magistrate or,

as the case may be, the District Magistrate shall, on such

request being made to him-

(a) take possession of such asset and

documents relating thereto; and

(b) forward such assets and documents to

the secured creditor:

Provided that any application by the

secured creditor shall be accompanied by an

affidavit duly affirmed by the authorised officer

of the secured creditor, declaring that-

(i) the aggregate amount of financial

assistance granted and the total claim of the

Bank as on the date of filing the application;

(ii) the borrower has created security

interest over various properties and that the

Bank or Financial Institution is holding a valid

and subsisting security interest over such

properties and the claim of the Bank or

Financial Institution is within the limitation

period;

(iii) the borrower has created security

interest over various properties giving the details

of properties referred to in sub-clause (ii) above;

(iv) the borrower has committed default

in repayment of the financial assistance granted

aggregating the specified amount;

(v) consequent upon such default in

repayment of the financial assistance the

account of the borrower has been classified as a

non-performing asset;

(vi) affirming that the period of sixty days

notice as required by the provisions of sub-

section (2) of Section 13, demanding payment of

the defaulted financial assistance has been

served on the borrower;

(vii) the objection or representation in

reply to the notice received from the borrower

has been considered by the secured creditor and

reasons for non-acceptance of such objection or

representati