J U D G M E N T

The petitioners have approached this court being aggrieved by the fact that physical possession of the residential house of the 1st petitioner which was a secured asset in so far as the 1st respondent bank is concerned has been taken even before proceedings under Section 13 (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the Securitisation Act) have been finalized. It is submitted that going by the judgment of the Supreme Court in Kanaiyalal Lalchand Sachdev and others v. State of Maharashtra and others; (2011) 2 SCC 782 the taking of physical possession can only be done after action under Section 13 (4) is initiated. It is submitted that though a slightly different view has been taken in Standard Chartered Bank and others v. Noble Kumar and others; (2013) 9 SCC 620, this court in Roshan Narayanan C.S. v. Authorised Officer, Central Bank of India and another; 2017 (4) KLT 1172 has found that when there are mutually irreconcilable decisions of the Supreme Court and the latter judgment does not refer to the earlier judgment, then the earlier judgment will have to be followed. Specific reference is made to paragraph 13 of this court judgment in Roshan Narayan (supra) where this court held as follows:-

“13. I might add, at this juncture, that this court is mindful of the plethora of judicial precedents which state that, when confronted with two or more mutually irreconcilable decisions of the Supreme Court, that are cited at the bar, the inviolable recourse is to apply the earliest view, as the succeeding ones would fall in the category of per incuriam (See: Sandeep Kumar Bafna v State of Maharashtra & Anr – 2014 (16) SCC 623). In the instant case, it would have been easy for this court to brush aside the decision in Noble Kumar (supra) as per incuriam, as the said decision does not refer to the earlier decisions of concurrent benches in Satyawati Tandon (Supra) and Kanaiyalal (Supra). My attempt in this judgment, however, has been to

reconcile the said decisions in the light of the statutory provisions.”

2. The learned Standing Counsel appearing for the 1st respondent vehementally opposes the grant of any relief. Firstly it is submitted that the petitioners are chronic defaulters and the liability as on date in excess of Rs.33,00,000/-. It is submitted that the petitioners have also moved before the Debts Recovery Tribunal through a duly constituted securitization application and there is no cause of action whatsoever for the petitioners to approach this court by invoking the writ jurisdiction of this court under Article 226 of the Constitution of India. It is submitted that the law laid down in Noble Kumar (supra) is categoric and that action under Section 14 of the Securitization Act can be initiated even at the stage of demand notice under Section 13 (2) of the SARFAESI Act. It is submitted that there is absolutely no conflict between the decision in Noble Kumar (supra) and the earlier decision in Kanaiyalal Lalchand Sachdev (supra) as the question considered in Kanaiyalal Lalchand Sachdev (supra) was completely different and the issue considered was whether an appeal would lie under Section 17 in respect of an action taken under Section 14 of the Act. It is submitted that while considering that question the Supreme Court came to the conclusion that since taking of possession was also a measure under Section 13 (4) an appeal would certainly lie against the taking of possession under Section 14 of the SARFAESI Act.

3. Considering the fact that the secured asset which is now taken possession is stated to the residential house of the 1st petitioner, I suggested the learned counsel appearing for the petitioner that pending consideration of the stay application before the Debts Recovery Tribunal, the physical possession of the residential house can be restored on payment of some amount to the 1st respondent bank. The learned counsel fo