Appeal Dy. No. 1050/2022

Date: 01.12.2022

Smt. Rameshwari Devi Vs. Canara Bank

Present: Smt. Archana Singh along with Shri K. Kartikey,

counsel for the appellant,

Shri Maneesh Mehrotra, counsel for the respondent-Bank,

A mention has been made on behalf of the appellant stating

that there is urgency in the matter, as 02.12.2022 has been

fixed for taking over the physical possession of the property in

question by moving incorrect affidavit before the Chief

Metropolitan

Magistrate

mentioning

therein

that

no

proceeding is pending before any court of law, whereas the

Civil Suit No. 1206/2017 is pending before the Additional

District Judge (S.D.), Agra and S.A. No. 210/2021 is also

pending before the DRT, Allahabad.

Learned counsel for the appellant submits that the appellant

is neither borrower nor guarantor in the present case and it is

vehemently argued that a fraud was committed by the

borrower in connivance with the respondent-Bank, notice of

which was also taken in the criminal side and charge-sheet

has already been filed by the police authority before the

concerned court and a civil suit was also filed by the appellant

before the Civil Court, in which the parties are also appearing.

Since there is no interim protection granted by the Civil Court,

therefore, the respondent-Bank has sold the property in

question, which is a residential accommodation, in which the

appellant resides and by making falls statement before the

CMM, the Bank has obtained the order dated 22.09.2011 and

in pursuant thereto, possession of the property in question is

likely to be taken by the Bank tomorrow itself.

The report of the Registrar dated 01.12.2022 shows that no

pre-deposit has been made. It has also been mentioned that

dues of the Bank as on 30.11.2016 was Rs. 70,75,567.60

along with interest. It is contended that the property has been

sold by the Bank for Rs. 56.10 lacs, which is more than 75%

of the amount due. It is thus argued that waiver application

deserves to be allowed.

Learned counsel for the respondent-Bank submits that a Writ-

C No. 33065/2022, which was filed by son of the appellant

before the Hon’ble High Court, has been dismissed. It is

contended that once the property, which is under mortgage,

has been sold and the sale certificate has been issued in

favour of the Auction Purchaser, it is obligation of the Bank to

take possession of the property in question and handover the

same to the auction purchaser, but the appellant has filed the

present appeal only to stall the proceedings of the Bank.

Learned counsel for the respondent-Bank further submits that

the CMM/DM has power under section 14 of the SARFAESI Act

to assist the secured creditor in obtaining the possession as

well as the documents related to the secured asset even with

the help of any other subordinate to him as per the judgment

passed by the Hon’ble Apex Court in Balkrishna Rama Tarle

Dead through LRS & Anr. Vs. Phoenix ARC Private

Limited and others, decided on 26.09.2022. The Hon’ble

Apex Court has held that the powers exercisable by CMM/DM

under section 14 of the SARFAESI are ministerial and section

14 does not involve any adjudicatory process qua the points

raised by the borrowers against the secured creditor for

taking possession of the secured assets. It is thus contended

that CMM/DM cannot go into the merits of the case and is

only to see the compliance of all the formalities by the

secured creditor referred to in the proviso in section 14(1) of

the SARFESI Act. Therefore, the present proceeding drawn by

the appellant is not maintainable.

In reply, the learned counsel for the appellant submits that

the impugned orders have been obtained by the respondent-

Bank on the basis of false averment made before the Tribunal

below and before the concerned authority stating that no

proceedings are pending before any court of law. It is also

contended that the only relief, which is being pressed