Heard finally with the consent of both the parties.

In this petition under Article 227 of the Constitution of India, the

petitioner has assailed the illegality, validity and propriety of the order dated

13.05.2023 (Annexure P-7) and 30.12.2022(Annexure P-2) passed by the Chief

Judicial Magistrate(referred to as 'CJM' hereinafter), Indore as per Section 14 of

the Securitization and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002(referred to as 'SARFAESI Act' hereinafter).

2. The brief facts of the case are that the petitioner is the erstwhile owner

of the secured assets. The petitioner sold the property forming the secured

assets to the borrowers of respondent no.1 on 20.09.2020. The borrowers in

this case are respondent no.2 and 3. The borrowers took loan facility from

respondent no.1/bank. When the borrowers failed to repay certain installments,

the respondent no.1/bank took measures under the SARFAESI Act and

ultimately, filed an application u/S 14 of the SARFAESI Act before the learned

CJM, Indore to take administrative assistance for obtaining possession of the

secured assets. The CJM, Indore passed the impugned order directing the

respondent no.1 to take the physical possession of the secured assets. After the

petitioner having sold the property is in occupation of the secured asset as a

tenant. Accordingly, the instant petition is filed.

3. The petitioner in the present case is aggrieved by the actions taken by

the respondent no.1/bank, in as much as, it is going to take possession of the

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secured asset by virtue of the order passed by the CJM, Indore.

4. The contention of learned counsel for the petitioner is that according

to

Section

14

of

SARFAESI Act,

only

the

Chief

Metropolitan

Magistrate(referred to as 'CMM' hereinafter) or the District Magistrate(referred

to as 'DM' hereinafter), as the case may be, can assist the secured creditors for

taking possession of the secured assets, therefore, the impugned order passed

by the CJM in this case is without jurisdiction.

5. Learned counsel for the respondent submitted that petitioner has not

filed any document to show that he is the tenant and, therefore, if the tenant has

any grievance, instead of objecting under Section 14 of SARFAESI Act

proceedings, he could have approached the learned Debt Recovery Tribunal

(referred to as 'DRT' hereinafter) u/S 17(4A) of the SARFAESI Act, if at all

there is any threat of dispossession. The DRT has powers to examine the

matter and after recording of evidence, pass appropriate orders. The petitioner

without availing the aforesaid remedy has approached this Court, therefore, the

petition deserves to be dismissed.

6. Heard, learned counsel for the parties and perused the record.

7. The two core legal questions involved in this petition are :

(i) Whether the CJM can exercise powers u/S 14 of the

SARFAESI Act?

(ii) Whether the borrower can and /or "any other person" is

required to be given an opportunity of hearing before passing the

order u/S 14 of the SARFAESI Act?

8. So far as the answer to the first question is concerned, this question

came up for consideration before The Hon'ble Apex Court in the case of

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Authorized Officer, Indian Bank Vs. D. Visalakshi and Another reported

in (2019) 20 SCC 47. The Apex Court was tasked to deal with the contrary

views being taken from various High Courts in the country. The High Court of

Bombay, Calcutta, Madras, Madhya Pradesh and Uttarakhand interpreted the

said provision to mean that only the CMM in metropolitan areas and the DM in

non-metropolitan areas were competent to deal with the applications u/S 14 of

the SARFAESI Act whereas on the other hand High Courts of Kerela,

Allahabad, Andhra Pradesh and Karnataka took a contrary view and concluded

that the provision does not debar or preclude the CJM to exercise the powers

u/S 14 of the Act. The Apex Court in the case of Authorized Officer, Indian

Bank(supra) has held thus:

"34. Notably, the powers and functions of the CMM and the CJM

are equivalent and simi