ORDER

Heard finally with the consent of both the parties.

By way of the instant writ petition, the petitioner has assailed the order dated 28.06.2022 passed in Case No.0070/Anya Vividh/ 2022 by respondent no.1 whereby the application u/S 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (referred to as 'SARFAESI Act' hereinafter) filed by the petitioner has been dismissed.

2. Brief facts of the case are that the petitioner is a nationalised bank engaged in the business of banking. Respondent no. 2 approached the petitioner/bank for availing housing loan of Rs. 19,64,000/- (including overdraft HL). Respondent No. 3 who is the husband of respondent No.2, provided guarantee towards the said loan. Respondent no.2 in order t o secure the repayment of the said loan created equitable mortgage/security interest in respect of following properties (i) admeasuring 548 sq. ft. situated at House/plot No. 411, Mishrilal Nagar Extension Colony, Wards No. 16, Village Birakhedi, Dewas (M.P.) and (ii) admeasuring 484 sq. ft. situated at house/plot No. 450, Shri Ganganagar Colony, Dewas (MP) (referred to as 'properties in question') in favour of the petitioner. The account of the respondents no. 2 and 3 was classified as Non Performing Asset (for short 'NPA') due to defaulted repayment of loan as per the terms and conditions. Notice u/S 13(2) of the SARFAESI Act were served upon the respondents. Since no objections were received from the respondents/borrowers, petitioner bank took over the symbolic possession of the mortgaged properties under Section 13(4) of the SARFAESI Act and the same was published in the newspaper. Thereafter, on 01.02.2022, petitioner published an e-auction sale notice which was conducted on 17.02.2022 and sold off both the mortgaged properties. On the very same day, respondents No. 2 and 3 deposited an amount of Rs. 40,000/- towards the loan dues. Petitioner filed application u/S 14 of the SARFAESI Act before the respondent No.1/Additional District Magistrate, Dewas for taking possession of the properties in question from the respondents no.2 and 3. During the pendency of the application, respondents No. 2 and 3 deposited a total amount of Rs. 17,71,154/- on various occasions. Further, the respondents/borrowers, despite being aware of the fact that the mortgaged properties have been auctioned, without any intimation or seeking permission from the petitioner, sold the mortgaged property creating third party interest. The respondent no.1 instead of assisting the petitioner to take possession of the properties in question, exceeded its jurisdiction and went beyond its statutory powers by holding that the respondents no. 2 and 3/borrowers have deposited an amount of Rs. 18,11,154/- on several dates, therefore, they have repaid their entire outstanding dues and dismissed the application.

3. Learned counsel for the petitioner submitted that respondent no.1 failed to consider that the petitioner company is a secured creditor and the properties in question are secured by way of mortgage. The respondent no.1 exceeded its jurisdiction in deciding the rights of the parties while rejecting application u/S 14 of the SARFAESI Act. In fact, the respondent no.1 ought to have considered only two aspects:

(i) Determine whether the secured assets fall within its territorial jurisdiction? (ii) Whether notice u/S 13(2) of the SARFAESI Act has been furnished or not? 4. In support of his contention, learned counsel for the petitioner relied on the judgment passed by Single Bench of this Court in the case of Cholamandalam Investments and Finance Ltd. Vs. Additional District Magistrate and Others [2018(3) MPLJ 123] wherein, in para 20 it is held that :

20. "It has been held that the District Magistrate has to consider only two aspects. He has to first determine whether the secured asset falls within his territorial jurisdiction and secondly whether the notic