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2021 Supreme(Online)(J&K) 20
JAMMU AND KASHMIR HIGH COURT
Shri A. H. Furrahi, Shri B. A. Dar, JJ
Abdul Aziz Wani v. Union Territory of J. and K. and Others
C. M. No. 3319 of 2021
For the Appellants/Petitioners: A. H. Furrahi
For the Respondents: B. A. Dar
A borrower may challenge possession proceedings under SARFAESI Act by filing objections if additional properties are erroneously included.
Headnote:The court allowed the extension of time for the petitioner to deposit the requisite court fee with the Registry. The writ petition challenged possession proceedings initiated under S.14 of the SARFAESI Act, asserting that additional land was sought improperly. The court clarified that no order has been challenged from the District Magistrate and that any such order must be addressed appropriately by the petitioner. The petition is disposed of accordingly.
| Table of Content |
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| 1. extension of court fee deposit time allowed. (Para 1) |
| 2. final disposition of the petition. (Para 2) |
| 3. challenge against wrongful possession of additional land. (Para 4 , 5) |
| 4. requirements under sarfaesi for possession applications. (Para 6 , 7 , 8 , 9) |
1. An application has been moved seeking extension of time for annexing / depositing the requisite court fee with the writ petition. In view of the grounds urged therein, it is allowed. The petitioner shall deposit the requisite court fee with the Registry of this Court within a period of one month from the date Registry shall start working normally.
2. CM No. 3319/2021 stands disposed of accordingly.
3. Heard Shri A. H. Furrahi, learned counsel for the petitioner and Shri B. A. Dar, learned Sr. AAG appearing for the UT respondents.
4. The petitioner by means of this writ petition has inter alia challenged the proceedings for possession of the secured assets.
5. It appears that the petitioner is a borrower and had mortgaged some of his property to secure the loan. On account of the default in payment of the borrowed money proceedings were initiated against him under the securitization. Now the bank has approached to the District Magistrate under S.14 of the SARFAESI Act for taking possession of the property.
6. The submission of the learned counsel for the petitioner is that the petitioner has not mortgaged the property in question and that the bank is trying to take possession of the additional land which has not been mortgaged.
7. The application of the bank under S.14 of the SARFAESI Act clearly describes the property which has been mortgaged. In case any of the property described therein has not been mortgaged the petitioner can take objections to that effect by filing an appropriate application before the District Magistrate.
8. It is apt to mention here that the application filed under S.14 of the SARFAESI Act has to be accompanied by an affidavit duly affirmed by the authorized Officer of the establishment i.e., the Bank declaring certain things therein as provided under the aforesaid provision. It is only on the receipt of such application that the District Magistrate / Chief Metropolitan Magistrate, on being satisfied of the contents of the application, may pass suitable orders for the purposes of taking possession of the secured assets.
9. We are not aware if any final order has been passed by the District Magistrate / Chief Metropolitan Magistrate, as the case may be, as is contemplated under S.14 of the SARFAESI Act . The petitioner has not challenged any such order. Therefore, in the event, if no order has been passed, the District Magistrate / Chief Metropolitan Magistrate may consider the application of the Bank in accordance with law as aforesaid and pass appropriate orders accordingly. In the event any order has already been passed by the District Magistrate, it is open for the petitioner to challenge it before the appropriate authority.
The petition is disposed of accordingly.
Order accordingly.
