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Judgment
The present petition is filed by the petitioners
under Articles 14, 19(1)(g), 226 and 227 of the
Constitution of India as well as under the
provision of the Securitisation & Reconstruction
of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter referred to as
"the SARFAESI Act") read with Rules made
thereunder for the prayers inter alia that
appropriate writ, order or direction may be issued
quashing and setting aside the orders passed by
the Additional District Magistrate dated
19.09.2013, 23.10.2013 and 20.01.2014 and also the
order passed by the respondent no.2 dated
10.12.2013 on the grounds stated in the memo of
petition.
Heard learned advocate, Shri Bharat Jani for the
petitioners, learned AGP Shri Venugopal Patel for
the respondent nos.1 and 2 and learned advocate,
Ms.Nalini Lodha for the respondent no.3.
Learned advocate, Shri Jani referred to the
background of the case and submitted that the
petitioners are the borrowers, however, the
procedure for the recovery under the SARFAESI Act
has not been followed, particularly, Section 14 of
the SARFAESI Act provides for the procedure, which
has not been followed. Learned advocate, Shri Jani
referred to Section 14 of the SARFAESI Act and
submitted that as provided in Section 14(c) of the
SARFAESI Act, affidavit is required to be
submitted, which is not submitted by the
respondent?Bank. For that purpose, he pointedly
referred to Page No.250 and submitted that
affidavit is affirmed subsequently as the dates
would indicate. He submitted that inward stamp
number refers to 18th March, 2013, whereas the
affidavit before the Notary is affirmed on 25th
March, 2013. Learned advocate, Shri Jani
specifically referred to Section 14 of the
SARFAESI Act and submitted that it provides that
the District Magistrate to assist secured creditor
in taking possession of the secured asset, however
proviso refers to the application by the secured
creditor stating that it shall be accompanied by
affidavit duly affirmed by the authorized officer
of the secured creditor. Learned advocate, Shri
Jani submitted that such affidavit has not been
filed. He further submitted that there is no
notice to the tenant and the objections or the
representation of the borrower have not been
considered. He, therefore submitted that without
providing sufficient opportunity, the impugned
orders passed by the District Magistrate is in
violation of the provision of the SARFAESI Act as
well as the Rules of natural justice.
Learned advocate, Shri Jani referred to the
judgment of the High Court reported in case of
Manjudevi R. Somani Vs. Union of India & Ors.,
reported in 2013 (2) GLH 390 = AIR 2013 Gujarat
242 and submitted that the powers are with the
Chief Metropolitan Magistrate, whereas the order
is passed by the Additional Chief Metropolitan
Magistrate. Similarly he referred to the order
dated 23.10.2013 passed by the District
Magistrate, Kutch?Bhuj and submitted that though
it is recorded that the order is passed in the
presence after hearing, no such opportunity has
been given or documents, which have been produced,
are not considered. Learned advocate, Shri Jani
also referred to Annexure?B at Page No.26, which
is the order passed by the Executive Magistrate,
Gandhidham ? Kutch and submitted that order is
passed by the Executive Magistrate. He submitted
that though it has a reference to the borrowers,
no notice has been issued to the tenants, who were
in actual possession and occupation of the
premises. Learned advocate, Shri Jani also
referred to the judgment and order of the Hon''ble
Division Bench in Writ Petition (PIL) No.68 of
2012 (Coram : Bhaskar Bhattacharya, CJ & J.B.
Pardiwala, J.) dated 11.10.2012 and submitted that
as observed in Paragraph No.7, the notice is
required to be given so that the innocent person
in lawful possession may not be harassed and
inspite of that, no such notice has been given to
the tenants. He also referred to Paragraph No.8
and submitted that as observed, if the concerned
Magistrate comes to know about the interim order
passed by any competent forum, the protection
could be given accordingly. Learned advocate, Shri
Jani referred to the papers and submitted that to
the knowledge of the respondent?bank, the orders
have been passed by the AAIFR, the appellate
authority. He pointedly referred to the
communication dated 19.08.2013 by the petitioners
produced at Page No.34 and submitted that as
stated, facts are not provided by the bank. He
also referred to the Original Application No.27 of
2010 filed before Debt Recovery Tribunal,
Ahmedabad as well as Case No.69 of 2010 before the
BIFR regarding the suit filed by the tenant and
submitted that the injunction granted has not been
conveniently mentioned. He submitted that it was
directed to maintain status quo and inspite of
that, the bank has proceeded for taking over the
possession in exercise of the power under Section
14 of the SARFAESI Act. He also referred to
another communication dated 27.08.2013 to support
his submission. Learned advocate, Shri Jani also
referred to the letter addressed by the lawyer
dated 04.10.2013 to the District Magistrate and
submitted that it has been informed that the
matter is before the BIFR and the order of status
quo is in operation, which was specifically
mentioned. He submitted that this has been
overlooked and, therefore, the present petition
has been filed and the interim relief has been
granted. Learned advocate, Shri Jani referred to
the judgment of the Hon''ble Apex Court in case of
Harshad Govardhan Sondagar Vs. International
Assets Reconstruction Company Limited & Ors.,
reported in (2014) 6 SCC 1 and submitted that
effect of the Transfer of Property Act as well as
SARFAESI Act has been considered. He emphasized
that lawful possession of the premises could not
have been taken over and, therefore, the petition
would be maintainable. Learned advocate, Shri Jani
also referred to the affidavit in rejoinder.
Learned advocate, Ms.Lodha referred to the papers
as well as background of the case and submitted
that the petitioner?firm is the principal borrower
and in exercise of the power under Section 14 of
the SARFAESI Act, steps have been taken after the
order is passed by the Debt Recovery Tribunal in
favour of the present respondent no.3 - secured
creditor in Securitization Application No.63/2009.
She pointedly referred to the Securitization
Application No.63/2009 and submitted that the Bank
had already taken symbolic possession of the
property and, therefore, it is now too late to
raise any such contention. She submitted that the
petitioners have not come with clean hands as the
contentions are raised that the notice has not
been served to the tenants or the guarantors and
though the procedure under Section 14 of the
SARFAESI Act providing for filing of the
affidavit, affidavit has not been filed and,
therefore, whole procedure is bad. However,
learned advocate, Ms.Lodha referred to Section 14
as well as the affidavit, which is required to be
filed and submitted that affidavit has been filed
and even if there is some lapse, it would not
justify the exercise of any discretionary relief
in favour of the petitioner considering the
chequered history as well as different
proceedings, which have been pursued only to stall
the recovery. For that purpose, she referred to
the background and submitted that there were
proceedings before the BIFR and, thereafter,
before the appellate authority, AAIFR. She also
submitted that the Securitization Application
No.63/2009 was before the Debt Recovery Tribunal
and, thereafter, there were another
application/petition filed challenging the said
order and the High Court has passed an order in
Special Civil Application No. No.7078/2015
declining to interfere. She referred to the order
of the Debt Recovery Tribunal in Securitization
Application No.63/2009 at Annexure?D and also the
order passed in Special Civil Application No.
No.7078/2015. Learned advocate, Ms.Lodha submitted
that the Court may examine the papers and also
submitted that the petitioner is coming forward in
the name of guarantors or the tenants, which
requires scrutiny as to whether there is any
genuine tenancy or the guarantor. She submitted
that though the petitioners have pursued the
remedy including the petition before the High
Court as well as before the Hon''ble Apex Court, no
such contention has been raised and even before
the appellate authority under the Debt Recovery
Tribunal, such contention has not been raised.
Learned advocate, Ms.Lodha submitted that the
application was filed for condonation of delay
against the order of the Debt Recovery Tribunal,
which was rejected and against that, Special Civil
Application No.7078 of 2015 was filed, which was
also dismissed by the High Court (Coram : N.V.
Anjaria, J.) vide order dated 07.12.2016.
Therefore, learned advocate, Ms.Lodha submitted
that the contentions are raised as an
afterthought. She also submitted that the
submission about the tenancy right also cannot be
made without any specific supportive documents.
For that purpose, learned advocate, Ms.Lodha
referred to the judgment of the Hon''ble Apex Court
in case of Harshad Govardhan Sondagar (supra) and
pointedly referred to the observations made in
Paragraph No.36 and submitted that as observed,
any such claim based on lease or tenancy could be
claimed by the registered documents. She submitted
that admittedly, the petitioners have not produced
any document. Learned advocate, Ms.Lodha also
submitted that one of the persons is said to have
filed a suit before the Civil Court at Bhuj
contending that he is having leave and license in
respect of the premises. Further she submitted
that licensee may not have any right, title,
interest and cannot get protection as a tenant.
Learned advocate, Ms.Lodha therefore submitted
that the judgment of the Hon''ble Apex Court in
case of Harshad Govardhan Sondagar (supra) relied
upon by learned advocate, Shri Jani is required to
be considered with the background of the facts.
She submitted that it is required to be considered
as to whether the petitioners have fulfilled the
requirement. She submitted that the observation in
the judgment would not be attracted and on the
contrary, unless there is registered document
regarding the tenancy or the lease, no one can
claim such right and such contentions can be said
to be afterthought. Learned advocate, Ms.Lodha
also referred to the judgment of the High Court in
case of IDBI Bnak Ltd. Vs. Hytaisun Magnetics
Ltd., reported in 2011 (2) GLR 1438 and submitted
that the judgment of the learned Single Judge
referred to and relied upon by learned advocate,
Shri Jani for the petitioner in case of Authorised
Officer, Canara Bank Vs. Sulay Traders, Through
Bipin Kantilal Vakta & Ors., reported in (2010) 1
GLR 770 is no longer a good law. For that purpose,
she pointedly referred to the Paragraph No.21 of
the judgment in case of IDBI Bnak Ltd. (supra) and
submitted that it has been specifically stated
that the judgment in case of Authorised Officer,
Canara Bank (supra) and in Special Civil
Application No.3943/2008 are no longer good law.
Learned advocate, Ms.Lodha also referred to the
observation made in Paragraph Nos.6 and 7 of the
judgment and submitted that admittedly, the
petitioners have been borrowers and the bank has
taken the measures as provided under Section 13(4)
read with Section 14 of the SARFAESI Act and the
judgment and order of the Debt Recovery Tribunal
in Securitization Application No.63/2009 has
considered all aspects and said judgment has not
been quashed and set aside. Therefore, when
further steps are taken for recovery of the
possession after the symbolic possession is taken,
such contention cannot be raised. Learned
advocate, Ms.Lodha has also submitted that the
order passed by the Appellate Authority was sought
to be challenged by the petitioners by way of
Special Civil Application No.7465/2014, which came
to be dismissed and, therefore, the submissions
about the status quo are misconceived as there was
no such order and if at all there was any, the
petitioners could have been produced on record.
Learned AGP Shri Venugopal Patel submitted that
the petition deserves to be dismissed on the
ground of suppression of material facts and non?
joinder of necessary and proper party. He
submitted that the petitioners have conveniently
not stated about some orders passed by the
authority like Appellate Authority of BIFR as well
as the fact that Special Civil Application
No.17465/2014 has been dismissed. Not only that,
the petitioners have conveniently not chosen to
state about the tenants and now what is sought to
be contended in the name of tenant requires closer
scrutiny. He submitted that the possession is
sought to have been claimed by some persons, who
are partners or the guarantors of the principal
borrowers, Vijay Timber Industries. He submitted
that the petitioners are filing the petition
invoking jurisdiction of this Hon''ble Court in the
name of tenants, who have never come forward and
if the possession of the tenant is disturbed, they
would have been vitally affected and they would
have moved the Court. He submitted that throughout
so?called tenants or the person having any right,
title interest have not chosen to take any steps
and, therefore, the petitioners have no locus
standi to pursue such petition having failed in
earlier round of litigations before the High Court
as well as before the Debt Recovery Tribunal
and/or other authority like BIFR. He submitted
that there is no record or material suggesting
about actual physical possession by the tenant
and, therefore, statutory provision of SARFAESI
Act would have its application, particularly when
the order of the Debt Recovery Tribunal in
Securitization Application No.63/2009 has not been
disturbed, there is no justification to stall at
the stage of recovery of the possession. Learned
AGP Shri Patel submitted that symbolic possession
was also taken and, therefore, such contention
cannot be raised. Learned AGP Shri Patel submitted
that the District Magistrate is not required to
adjudicate and, therefore, such submission that he
has not considered the documents, etc. has no
relevance.
In rejoinder, learned advocate, Shri Bharat Jani
reiterated his submission. He pointedly referred
to the submission that the affidavit as required
under Section 14 of the SARFAESI Act has not been
filed. He referred to the papers to support his
contention and again reiterated about the manner
in which such affidavit is filed and tried to
submit that the procedure as required under
Section 14 of the SARFAESI Act for making an
application to the District Magistrate has not
been followed and, therefore, the order passed by
the District Magistrate deserves to be set aside.
He also submitted that the opportunity has not
been given though to the knowledge of the District
Magistrate, some orders have been passed and/or
there were issues regarding the tenancy rights
and, therefore, when the notices have not been
issued to all concerned including the tenants and
the guarantors, such orders are in violation of
the Rules of natural justice. He also tried to
submit that there was an order of status quo
granted by the AAIFR, which has not been
considered and, therefore, the present petition
may be allowed. Learned advocate, Shri Jani
referred to the judgment in case of Authorised
Officer, Canara Bank (supra) to support his
submission and also judgment in case of Apex
Electricals Ltd. & Ors. Vs. ICICI Bank Ltd.,
reported in 2003 (2) GLR 1785 and submitted that
the provision of the SARFAESI Act and the Transfer
of Property Act with regard to the security
interest in the property has to be considered and
same has not been considered when the notice is
not given to the tenants. Learned advocate, Shri
Jani has also again referred to the order of the
Hon''ble Division Bench in Writ Petition (PIL)
No.68 of 2012 at Page No.84 and submitted that
though it was pointed out that the property is
rented with documents, relevant documents are not
considered.
Learned advocate, Ms.Lodha in reply, however,
submitted that the judgment of the learned Single
Judge in case of Authorised Officer, Canara Bank
(supra) is no longer a good law as per the
judgment of the Hon''ble Apex Court in case of IDBI
Bnak Ltd. (supra). Similarly, she submitted that
no stay has been granted even though Special Civil
Application No.17468/2014 was filed challenging
the refusal of the condonation of delay against
the order passed in Securitization Application
No.63 of 2012 before the Debt Recovery Tribunal.
She, therefore, submitted that the order of the
Debt Recovery Tribunal was not disturbed and as no
order has been passed by the High Court even
though the petition has been filed, the
submissions are misconceived as pending proceeding
or the order, the respondent has initiated the
proceeding. Learned advocate, Ms.Lodha submitted
that the submission regarding the tenancy or the
premises is rented is without any basis as the
petitioner has failed to produce any such material
on record and, therefore, such ground is not
permissible to be raised in such proceedings,
which have been filed as and by way of abuse of
the process of the Court only to stall the
recovery proceeding. Learned advocate, Ms.Lodha
submitted that the petition is filed by the
petitioners in the name of tenants, who have never
come forward and if the possession and occupation
is with somebody or the tenants, they would have
been vitally affected and would have filed
proceeding. She pointedly referred to the facts
that the so?called boggy of tenant is an
afterthought and, therefore, the present petition
may not be entertained and may be rejected.
In view of these rival submissions, it is required
to be considered whether the present petition
deserves consideration.
As could be seen from the background of the facts
and the rival submissions, much emphasis is given
on the aspect of procedure referring to Section 14
of the SARFAESI Act. The provision of Section 14
of the SARFAESI Act provides for the procedure to
be followed for the purpose of possession and the
Chief Metropolitan Magistrate or the District
Magistrate on a request being made by the secured
creditor, the assist is required to be given to
the secured creditor for the recovery of the
possession. However the first proviso to Section
14 of the SARFAESI Act has a reference to the
application by secured creditor with an affidavit
of the secured creditor with all declaration as
stipulated in the proviso. It further provides
that on receipt of such affidavit of the
authorized officer, the Metropolitan Magistrate or
the District Magistrate as the case may be after
satisfying the contents of the affidavit may pass
suitable orders for taking possession of the
secured assets. Learned advocate, Ms. Lodha has
stated that this has been inserted by the
amendment w.e.f. 15.01.2013 and, therefore, the
application or the affidavit is not required.
Further she referred to the objection or the
representation, which is required to be considered
by the secured creditor and, thereafter, if the
borrower has not made payment inspite of the
notice then, the secured creditor may proceed to
recover the possession. Again Chapter - III, which
provides for "Enforcement of security interest".
Section 13 referred to "Enforcement of security
interest". The provision of Section 13(3A) of the
SARFAESI Act, which has been brought into force by
amendment has a reference to the aspect of raising
any objection by the borrower, which is required
to be considered. The provision of Section 13(4)
provides that where the borrower fails to
discharge liability, the creditor may have
recourse to take possession of the secured assets.
Section 14(4)(d) of the SARFAESI Act also
provides,
"(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."
Therefore, it contemplates that when the borrower
fails to discharge his liability, the secured
creditor can take recourse or the measures to
recover the debt and at that stage, may by notice
in writing to the person, who has acquired any
interest in the secured asset from the borrower,
may be called upon to pay to the secured creditor.
Thus the SARFAESI Act provides a complete code for
the procedure to be followed. The petitioner
herein has been pursuing the remedy or litigation
as a gainful exercise to stall the recovery
proceeding and has been raising contention in the
present petition in the name of the tenant.
However admittedly, the notice has been issued to
the petitioner and the provision of Sections 13
and 14 of the SARFAESI Act has to be read with
Rule 4 of the Security Interest (Enforcement)
Rules, 2002 (hereinafter referred to as "the
Rules, 2002"). Rule 4 of the Rules, 2002 provide,
"4. Procedure after issue of notice. ?? If the amount mentioned in the demand notice is not paid within the time specified therein, the authorised officer shall proceed to realise the amount by adopting any one or more of the measures specified in sub?section (4) of section 13 of the [Act] for taking possession of movable property."
It is at that stage, the person in possession may
have right to move or take any objection. In the
instant case, though it is claimed that the actual
possession is with the tenant, there is no such
material or evidence placed on record or even
contended. Moreover as rightly contended that if
the possession is with the tenant or third party,
who would be affected, may have moved the Debt
Recovery Tribunal. The amendment to Section 17 of
the SARFAESI Act has widen scope by inserting
after the amendment "any person aggrieved". Thus
it provides that any person, who is aggrieved by
any measure referred to in Section 13(4) or
Section 14 of the SARFAESI Act or the authorised
officer may have right to move by making an
application to the Debt Recovery Tribunal.
Admittedly no such application has been made till
date by any so called tenant or the guarantor or
anyone claiming any interest or right in the
secured asset. Again the judgment of the Hon''ble
Division Bench of the High Court in case of IDBI
Bank Ltd. Vs. Hytaisun Magnetics Ltd., reported in
2011 (2) GLR 1438 has considered the aspect of
enforcement of security interest with reference to
the provision of Section 13(4) of the SARFAESI
Act. The Hon''ble Division Bench has therefore
while concluding has clearly observed,
"If such measures taken under Section 14 which amount to measures taken under Section 13(4) is not in accordance with the Securitization Act or the Rules framed thereunder, including the objection, if any, raised that the asset is not a secured asset to be taken under Section
13(4), the aggrieved person has a remedy under Section 17 before the Debts Recovery Tribunal to show that the measures taken are against the Act [Section 13(4)] or the Rules framed thereunder."
It has also been observed that the judgment of the
High Court in case of Authorized Officer, Canara
Bank vs. Sulay Traders through Bipin Kantilal
Vakta, reported in 2010 (1) GLR 770 does not lay
down a good law. Therefore the contentions which
have been sought to be raised with reference to
the Chief Metropolitan Magistrate and the District
Magistrate, are misconceived. It has been clearly
answered by the Hon''ble Division Bench in a
judgment of the Hob''ble Division Bench of the High
Court in case of Manjudevi R. Somani Vs. Union of
India & Ors., reported in 2013 (2) GLH 390 = 2013
(4) BC 694 that when similar contentions were
raised that the Chief Metropolitan Magistrate or
the District Magistrate may have power and
Additional Chief Metropolitan Magistrate does not
have jurisdiction, such contentions have been
negatived. Further the submission with reference
to the tenancy rights of the tenant or the lease
also cannot be readily accepted. The Hon''ble Apex
Court in a judgment in case of Harshad Govardhan
Sondagar Vs. International Assets Reconstruction
Company Ltd. & Ors., reported in (2014) 6 SCC 1
has considered the provision of the SARFAESI Act
as well as the Transfer of Property Act. The
HOn''ble Apex Court has considered that the
creation of lease of the mortgage and the effect
on the mortgagee with reference to the provision
of the Transfer of Property Act read with SARFAESI
Act has been considered. The secured assets and
the security interest have to be considered. The
Hon''ble Apex Court in this judgment has considered
this aspect of creation of right in favour of the
tenant/ lessee of the borrower. It has discussed
regarding the lease granted by the borrower, which
could be classified in three classes:
"Class (1) Leases created prior to mortgage which created the secured asset; Class (2) Leases created after creation of the mortgage, vide S. 65?A TPA but prior to receipt of S. 13(2) SARFAESI Act notice by borrower; and Class (3) Leases created after creation of the mortgage, vide S. 65?A TPA but after receipt of S. 13(2) SARFAESI Act notice by borrower."
Therefore considering different procedure
regarding the application of the provision of the
SARFAESI Act read with the provision of the
Transfer of Property Act in such situation for the
purpose of right of the secured creditor like the
bank and the right of the lessee or the tenant,
the observations have been made. It has also
considered the extent to which the provision of
the SARFAESI Act would override the provision of
the Transfer of Property Act, 1882 in light of
Section 35 of the SARFAESI Act. The Hon''ble Apex
Court has clearly observed that when the lease
falls in Class (3) and when there is no valid
lease then, such a person would be liable for
immediate eviction and delivery of possession to
the secured creditor by Chief Metropolitan
Magistrate. Again as stated above, this has to be
read with the observation made by the Hon''ble Apex
Court in Paragraph No.32 regarding the provision
of Section 17 of the SARFAESI Act after the
amendment providing for a wider scope after the
amendment when "any person aggrieved" has been
inserted, which may include even the lessee or the
tenant. This has also to be read with the Rules,
2002. The judgment of the Hon''ble Apex Court in
case of Transcore Vs. Union of India & Anr.,
reported in (2008) 1 SCC 125 has also been
considered.
However in the instant case, there is no valid
registered lease deed nor any issue of tenancy is
claimed, raised or established by any third party
claiming such right, Again such right or claim
would require some evidence suggesting right of
third party by way of tenancy or lease, which is
required to be prima facie shown or established by
some document. In the instant case, as any such
tenancy or lease in favour of any third party or
anyone has not been brought on record or
established by any material. The submissions made
by learned advocate, Shri Jani for the petitioner
are misconceived.
Not only that, the petitioner had filed petition
being Special Civil Application No.7078 of 2015,
which was also dismissed by the High Court
(Coram : N.V. Anjaria, J.) vide order dated
07.12.2016. Again where such lease is created
before the security interest are created or after
would be relevant. In the facts of the case, there
is no such evidence suggesting about the creation
of any such lease or tenancy right in favour of
anybody. Not only that, during earlier round of
litigation, it has not been claimed or canvassed.
Further, the person as a tenant or lessee likely
to be affected has not come forward. The lease as
it appears is claimed in favour of the partner or
the guarantor of the principal borrower i.e. the
firm and, therefore, veil is required to be lifted
to see through any such game to stall the recovery
proceedings and, thereby dupe the public money. In
fact this kind of litigation has been pursued as
stated above only with an intention to frustrate
the very aim and object of the SARFAESI Act, which
aims at speedy recovery of such money of the bank
or the financial institution with a drastic
provision made for such recovery. It is also not
in dispute that SARFAESI Act is a complete code in
itself. Moreover, the Hon''ble Apex Court in the
aforesaid judgment in case of Harshad Govardhan
Sondagar (supra) has also clearly observed,
"the provisions of the SARFAESI Act override the provisions of Section 69 or Section 69A of the Transfer of Property Act, but may not override the provisions of the Transfer of Property Act relating
to the rights of a lessee under a lease created before receipt of a notice under sub?section (2) of Section 13 of the SARFAESI Act by a borrower (Emphasis Supplied)".
Therefore if the petitioner claims that the
possession of the secured assets is with the
tenant, he has to produce proof of such registered
lease deed or the tenancy in favour of the tenant.
If he does not produce any such proof of execution
of the registered document or the instrument in
favour of third party as a tenant or lessee, the
Chief Metropolitan Magistrate or the District
Magistrate may have to come to a conclusion that
the bank/ secured creditor is entitled to
possession of the secure assets. A useful
reference can be made to the judgment of the
Hon''ble Apex Court in case of Transcore (supra)
more particularly Paragraph No.74 of this
judgment. When the issue with regard to the actual
possession with the tenant is sought to be raised,
reference is required to be made to the judgment
of the Hon''ble Apex Court in case of Dilboo (Smt)
(dead) by Lrs. & Ors. Vs. Dhanraji (Smt) (dead) &
Ors., reported in (2000) 7 SCC 702, wherein it has
been clearly observed that the recovery of the
possession of mortgaged property transferred by
mortgagee has to be by registered document and the
date of registration become the date of knowledge.
In the instant case, there is no such document
created or placed on record. Therefore, the
contentions raised by learned advocate, Shri Jani
are only to stall the proceeding for recovery.
Moreover as recorded hereinabove, there is no
material suggesting actual and physical possession
with the tenant and, therefore, when the order
passed by the Debt Recovery Tribunal in
Securitization Application No.63/2009 has not been
disturbed, there is no justification to exercise
the discretionary jurisdiction under Article 226
of the Constitution of India by this Court. As
rightly submitted, the petitioner has also not
raised such contentions in Special Civil
Application No.7078 of 2015, which came to be
dismissed by the High Court (Coram : N.V. Anjaria,
J.) vide order dated 07.12.2016.
Therefore having regard to the aforesaid relevant
aspects reflecting the conduct of the petitioner
and the statutory provision of the SARFAESI Act,
the present petition cannot be entertained and
deserves to be dismissed. Rule is discharged.
Interim relief, if any, stands vacated. No order
as to costs.