O R D E R

PURUSHAINDRA KUMAR KAURAV, J. (ORAL)

1. The petitioners in the instant writ petition are aggrieved by the order passed by the learned Chief Metropolitan Magistrate (CMM), KKD Court, Delhi on 22.09.2022 whereby, pursuant to an application filed by the respondent no.2-Hinduja Leyland Finance Ltd., a Non-Banking Financial Corporation (hereinafter as „NBFC‟), under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter as „SARFAESI Act‟), a Receiver was appointed to take possession of the secured asset and forward it to the secured creditor.

2. Learned counsel appearing on behalf of the petitioners raised various objections against the said order. According to him, the impugned action is [3]

without jurisdiction as the petitioners are neither the borrower nor the guarantor qua the mortgaged property. While pointing out various anomalies in the action taken by the respondents, he also submits that a fraud has been committed on the petitioners by respondent no.1.

3. Learned counsel appearing on behalf of the respondent no.2-NBFC opposes the submissions and he submits that the instant petition, at the stage of appointment of the Receiver, is not maintainable. According to him, in any case, if the petitioners are aggrieved by the action under the provisions of the SARFAESI Act, they need to take an appropriate remedy in accordance with Section 17(1) of the SARFAESI Act.

4. He has placed reliance on the decision of the Hon'ble Supreme Court in the case of United Bank of India v. Satyawati Tondon & Ors.1 and Phoenix ARC Private Ltd. v. Vishwa Bharati Vidya Mandir & Ors.2 to buttress his submissions. He, therefore, submits that in any case, the assumption for the sake of argument that the petitioner is neither a borrower nor the guarantor but still an aggrieved person, is against the action under the SARFAESI Act. Thus, the writ petition is not maintainable and the petitioners would have an effective remedy under Section 17(1) of the SARFAESI Act.

5. I have considered the submissions made by learned counsel for the parties and perused the record.

6. The impugned order passed by the learned CMM dated 22.09.2022 reads as under:-

1. The application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest

1 (2010) 8 SCC 110 2 (2022) 5 SCC 345

[4]

Act, 2002 (hereinafter referred to as "the Act") is taken up for consideration.

2. It is stated in the application that the applicant is a secured creditor whereas the respondents are "borrowers" as defined in section 2(1)(f) of the said Act. According to the applicant, the Plot bearing No. B- 388, out of Khasra No. 424, situated in the area of Village Ghonda, Gurjan Khadar, gall no 18, Bhajapura, Shahdara, Delhi area admeasuring 200 square yards which is bound by a street on the north side, property of other's on south and west side and property bearing no. B-388/1 on west side (hereinafter referred to as "the asset”) is a secured asset, since a "security interest" was created thereon by the borrowers to secure repayment of a loan. The borrowers are stated to have defaulted in repayment of the loan. It is further stated by the applicant that the loan account has been declared as 'non- performing asset. It is further averred that the secured creditor had issued statutory notice under section 13(2) of the Act but the respondents failed to discharge their liability in full within the stipulated period of sixty days from the date of notice. As the per applicant, there is no pending objection of the borrowers. It is stated in the application that possession of the asset needs to be taken and orders for that may be passed

3. Affidavit of the Authorized Officer of the secured creditor, as required by proviso of Section 14(1) of the Act, has also been filed. The affidavit discloses the extent of financial assistance granted and the claim of the Finance Company as on the date of