- (1.) Since the controversy involved in both the writ petitions are identical, the same have been taken up together for the purpose of analogous hearing and disposal and are being decided by this common judgement having binding effect upon both the writ petitions.
(2.) Briefly stated facts, according to the petitioner, are that M/s. Cawnpore Sugar Works Ltd. (in short called as ''CSWL'), which was originally incorporated in the year 1984 as a Joint Stock Company for the manufacture, refining and sale of sugar and other sugar bi-products, was initially having four units at Padrauna, Kathkuiyan, Gauri Bazar (in State of Uttar Pradesh) and Marhowra (in State of Bihar). Subsequently, by an order dated 01st February, 1993 of the Board for Industrial and Financial Reconstruction (in short called as ''BIFR') the CSWL was declared a sick industrial company and Industrial Finance Corporation of India (in short called as ''IFCI') was appointed as operating agency under Section 17(3) of the Sick Industrial Companies (Special Provisions) Act, 1985. Thereafter, a scheme for revival of CSWL was sanctioned by BIFR by its order dated 18th June, 2003, pursuant to which several efforts were made but all in vain. Subsequent thereto, on behalf of the secured creditor, IFCI proceeded under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter in short called as ''SARFAESI Act') and issued a notice under Section 13(2) thereof claiming Rs.30,09,18,022/- to be paid within sixty days from the date of receipt of notice. Such notice was also published in the daily newspaper on 13th January, 2011. When CSWL failed to discharge its liability as per said notice, again a notice dated 03rd March, 2011 was issued under Section 13 (4) of the SARFAESI Act and the same was also published in the daily newspaper ''Dainik Jagran' on 08th March, 2011. Thereafter an auction notice dated 15th March, 2011 was published by IFCI in daily newspaper ''Dainik Jagran' on 16th March, 2011 inviting proposals for sale of assets of two units of CSWL i.e. Gauri Bazar and Kathkuiyan. As per the auction notice, the minimum reserve price for both moveable and immoveable properties of Gauri Bazar unit was collectively fixed at Rs. 1656 lacs, whereas in respect of Kathkuiyan unit such reserve price was Rs.722 lacs. Accordingly, at the time of submitting offers the petitioner deposited earnest money of Rs. 165 lacs in respect of Gauri Bazar unit and Rs. 72 lacs in respect of Kathkuiyan unit. In the aforesaid auction, the petitioner was declared successful and accordingly, sale certificates dated 26th September, 2011 were issued in favour of the petitioner in respect of moveable and immoveable properties of both the units i.e. Gauri Bazar and Kathkuiyan. Subsequently thereto, on 15th October, 2011 the petitioner submitted an application before the District Magistrate, Deoria to provide necessary security so as to enable the petitioner to take over the possession of the fixed assets and moveable and immoveable assets of Gauri Bazar unit without any obstruction and hindrance. Similar application was also made to the District Magistrate, Kushinagar on 17th October, 2011 in respect of Kathkuiyan unit. However, the possession of the aforementioned properties have not been handed over to the petitioner as yet. Hence, seeking direction to that extent the petitioner has approached this Court by means of the present writ petitions, out of which Civil Misc. Writ Petition No. 65726 of 2011 is in respect of Gauri Bazar unit and Civil Misc. Writ Petition No. 65683 of 2011 is in respect of Kathkuiyan unit. Since the prayers made in both the writ petitions are identical, for brevity the prayers of Civil Misc. Writ Petition No. 65726 of 2011 are quoted hereunder: "(a) a writ, order or direction in the nature of mandamus commanding upon the respondents to hand over the physical possession of the entire moveable and immoveable properties of Gauri Bazar unit of M/s. Cawnpore Sugar Works Ltd., forthwith, in pursuance to the Sale Certificates dated 16.9.11 issued in favour of the petitioner, within a period to be specified by this Hon'ble Court; (b) a writ, order or direction in the nature of mandamus commanding upon the District Magistrate, Deoria, to take appropriate steps under section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (c) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of this case; and (d) award cost of the petition to be paid to the petitioner."
(3.) Mr. U.N. Sharma, learned Senior Counsel appearing for the petitioner, has drawn our attention to Section 14 (1) of the SARFAESI Act and submitted that it casts a duty upon the concerned Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset, on being made a request in writing. However, in the present cases, in spite of the applications having already been made, possession of the properties is not being handed over to the petitioner, due to which the petitioner is suffering huge financial loss as for the purpose of procuring the aforesaid properties the petitioner had taken loan from the bank, on which it is paying huge interest in lacs of rupees per day. Moreover, the sale certificates reveal that assets of both moveable and immoveable properties are free from all encumbrances but there are certain hurdles at the local level in taking over the possession of the property. The moveable assets lying in the premises are obsolete and if the same are not removed immediately from the premises, the same will become of no use. In further, the State will also incur huge loss on the tax if the moveable properties are left at the premises.;