BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05.04.2024 CORAM THE HON'BLE MR.JUSTICE R.SURESH KUMAR AND THE HON'BLE MR.JUSTICE G.ARUL MURUGAN W.P(MD)No.8629 of 2024 and W.M.P.(MD)Nos.7897 and 7898 of 2023 P.Ramesh ... Petitioner vs

1.PNB Housing Finance Limited, represented by its Authorised Officer, Nandhini Buildings 3^rd Floor, Door No.48, Byepass Road, Madurai – 625 010.

2.T.Baskaran

3.B.Maheswari

4.Bas Publication through Proprietor T.Baskaran, Madurai – 625 002.

5.The Commissioner, Commissioner Office Building, Alagarkoil Road, Madurai – 625 002.

6.The Sub Inspector of Police, Sellur Police Station, Madurai – 625 002.

7.The Sub Inspector of Police, Karimedu Police Station, Madurai – 625 010. ...Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records relating to the order of the learned Chief Judicial Magistrate, Madurai, in Cr.M.P.No.

522 of 2023, dated 08.08.2023 and to quash the same as illegal.

For Petitioner : Mr.N.Pandivelrajan *****

ORDER

(Order of this Court was made by G.ARUL MURUGAN, J.

This Writ Petition is filed challenging the order, dated 08.08.2023 passed in Cr.M.P.No.522 of 2023 on the file of the learned Chief Judicial Magistrate, Madurai, under Section 14 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”).

2.According to the Petitioner, he is neither the borrower nor the guarantor. He is a lessee of the property under the second and fourth respondents. He had entered into a lease agreement with the second Respondent on 15.05.2015 for a period of two years. The petitioner claims that along with him, twelve other persons have also are the lessees under the second respondent and since they were cheated, they have preferred a complaint with Sellur Police Station on 10.02.2023 and got C.S.R.No.123 of 2023. While so, the officials of the first respondent on 05.06.2023 issued a possession notice and thereafter, had filed an application before the learned Chief Judicial Magistrate, Madurai, under Section 14 of the Act. The impugned order, dated 08.08.2023 has been passed under Section 14 of the Act appointing an Advocate Commissioner to assist the secured creditor for securing the secured asset.

3.It is seen that the borrower had availed a loan of Rs.77,90,000/-

from the first respondent Bank and as the loan was not re-paid, the account was classified as Non Performing Asset on 30.04.2021. Thereafter, notice under Section 13(2) of the Act was issued and as the amount was not re- paid, possession notice under Section 13(4) of the Act also came to be issued, thereby, symbolic possession of the property was taken. It is seen that as on 05.06.2023, a due of Rs.4,48,06,877.53/- is outstanding and in the application filed by the secured creditor/first respondent under Section 14 of the Act, the learned Chief Judicial Magistrate, Madurai, by order impugned order, dated 08.08.2023, has allowed the application and appointed an Advocate Commissioner to assist the secured creditor to take possession of the property. This impugned order has been passed as early as on 08.08.2023 and now, the same is challenged by the petitioner almost, after a period of eight months without filing necessary application before the Debts Recovery Tribunal under Section 17 of the Act.

4.As against the order passed under Section 14(1) of the SARFAESI Act, the petitioner is having an effective and alternative remedy under Section 17 of the SARFAESI Act by filing an appeal before the Debts Recovery Tribunal. In the decision reported in (2010) 8 SCC 110 in the case of Union Bank of India -vs- Satyawadi Tondon and others, the Hon'ble Supreme Court has held that the party aggrieved by any orders passed under Section 14 of SARFAESI Act, had to file an appeal before the Debts Recovery Tribunal and held as follows:

“42.There is another reason why the impugned order s