(01.04.2021)

Per : Prakash Shrivastava, J.

This writ petition under Article 226/227 of the Constitution of India

has been filed by the petitioner aggrieved with the order of the Additional

Collector dated 25.01.2021 under Section 14 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest Act,

2002 (for short ‘the Act’) directing the Tehsildar to ensure delivery of

possession of the mortgaged property to the respondent-Bank.

2.

Learned counsel for the respondent No.3/Bank has raised the

preliminary objection that against such an order the petitioner has remedy of

filing an appeal under Section 17 of the Act. He has placed reliance upon

certain judgments in support of his submission.

3.

The submission of learned counsel for the petitioner is that the remedy

of appeal is not available against the order passed under Section 14 of the

Act and that in terms of sub-section (3) of Section 14 of the Act, the order

under Section 14 is final and it cannot be challenged in any court except in

the High Court under Article 226 of the Constitution of India.

4.

We have heard the learned counsel for the parties and perused the

record.

5.

Section 17 of the Act provides for remedy of appeal and reads as under :-

“17. Application against measures to recover secured debts —(1)

Any person (including borrower), aggrieved by any of the measures

referred to in sub-section (4) of Section 13 taken by the secured

creditor or his authorized officer under this Chapter, [may make an

application along with such fee, as may be prescribed] to the Debts

Recovery Tribunal having jurisdiction in the matter within forty-five

days from the date on which such measure had been taken:”

A bare perusal of above provision indicates that remedy of appeal is

available against any of the measures referred to under Section 13 (4).

Section 13(4) reads as under :-

“13. Enforcement of security interest.-

(1)

xxx xxx xxx

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(2)

xxx xxx xxx

(3)

xxx xxx xxx

(4)

In case the borrower fails to discharge his liability in full

within the period specified in sub-section (2), the secured

creditor may take recourse to one or more of the following

measures to recover his secured debt, namely:-

(a)

take possession of the secured assets of the

borrower including the right to transfer by way of

lease, assignment or sale for realising the secured

asset;

(b)

take over the management of the business of the

borrower including the right to transfer by way of

lease, assignment or sale for realising the secured

asset:

Provided that the right to transfer by way of

lease, assignment or sale shall be exercised only

where the substantial part of the business of the

borrower is held as security for the debt:

Provided further that where the management of

whole, of the business or part of the business is

severable, the secured creditor shall take over the

management of such business of the borrower

which is relatable to the security or the debt;

(c)

against any person (hereafter referred to as the

manager), to manage the secured assets, the

possession of which has been taken over by the

secured creditor;

(d)

require at any time by notice in writing, any

person who has acquired any of the secured assets

from the borrower and from whom any money is

due or may become due to the borrower, to pay

the secured creditor, so much of the money as is

sufficient to pay the secured debt.”

Section 13(4) of the Act permits the secured creditor to take recourse

to measures prescribed therein to recover the secured debt. One such

measure is to take possession of the secured asset. Section 14 of the Act

gives remedy to the secured creditor to approach the District Magistrate

when possession of any secured asset is required to be taken and it further

empowers the District Magistrate to take possession of such secured asset.

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Hence it is clear that action taken by the District Magistrate is in furtherance

of the provision contained under Section 13(4).

6.

Under Section 17 any