- (1.) Heard Sri Ashok Khare, the learned Senior Advocate assisted by Sri Prateek Chandra, the learned counsel for the petitioner and Sri Satish Chaturvedi, the learned counsel appearing for the respondent bank.
(2.) The present writ petition has been filed by the petitioner with the claim that the petitioner is neither a borrower nor a guarantor and in fact is a lessee in pursuance of a valid lease deed executed by the borrower - respondent no.2. The relief sought by the petitioner in the present writ petition is to the effect that the impugned order dated 1.1.2016 be quashed as it has been passed by the Additional District Magistrate purportedly in exercise of power under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SARFAESI Act'). The petitioner has also made the following prayer in the writ petition: "II. Issue a writ, order or direction in the nature of Mandamus directing the Respondent No.1 to refrain from interfering with the possession of the property of the petitioner; III. Issue a writ, order or direction in the nature of Certiorari or any other order or direction declaring the e-auction notice issued by the Respondent No.1 that was published in the newspaper on 16.1.2016 as null and void and restraining the Respondent No.1 from proceeding with the auction sale or taking any action. IV. ... V. ..."
(3.) Sri Ashok Khare, the learned Senior Counsel appearing for the petitioner has raised three basic contention while attacking the impugned order dated 1.1.2016 (Annexure No.1 to the writ petition); (a) that the order passed under Section 14 of the Act could not have been passed by the Additional District Magistrate as he is not the competent authority as the same being Collector / District Magistrate and in this regard reliance has been placed upon Section 14 of the Act, relevant portion of which reads as under: "14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.-- (1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him-- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor: Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that-- (i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application; (ii) the borrower has created security interest over ig various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period; (iii) the borrower has created security interest over various properties giving the details of properties referred to in sub-clause (ii) above; (iv) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount; (v) consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a non-performing asset; (vi) affirming that the period of sixty days notice as required by the provisions of sub-section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower; (vii) the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower; (viii) the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub-section (4) of section 13 read with section 14 of the principal Act; (ix) that the provisions of this Act and the rules made thereunder had been complied with: Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets: Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act. (1-A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,-- (i) to take possession of such assets and documents relating thereto; and (ii) to forward such assets and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of sub- section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate any officer authorised by the Chief Metropolitan Magistrate or District Magistrate done in pursuance of this section shall be called in question in any court or before any authority."" (b) that the Additional District Magistrate has not at all referred to the contention / objection raised by the petitioner in its objection filed in response to the application of the Bank under Section 14 of the SARFAESI Act; and (c) that the petitioner is a lessee under a validly executed lease deed.;