HARISH TANDON, J. - (1.) THE appellant is a borrower within meaning assigned under section 2(f) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) and defaulted in payment of loan taken from the financial institution by mortgaging the property. Subsequently, the financial institution declared the assets to be non -performing one and issued notice under section 13(2) of the SARFAESI Act. After the expiration of the statutory period provided therein steps were taken to take possession of the secured assets of the borrower under section 13(4) of the SARFAESI Act. In furtherance thereof, an application was taken out under section 14 of the SARFAESI Act for an order to take physical possession of the secured assets.
(2.) INDISPUTABLY , the Additional District Magistrate, South Andaman district passed an order on 14th August, 2012 directing the Superintendent of Police of the District, Port Blair to make arrangement for State Bank of India to take possession of the assets mentioned in the order. The said order is assailed in this writ petition; Firstly, that the Additional District Magistrate is not competent to pass an order under section 14 of the SARFAESI Act; secondly, section 20 of the Code of Criminal Procedure provides the delegation of power of District Magistrate to be exercised by Additional District Magistrate by an order of the State Government; thirdly, section 3A of the Code of Criminal Procedure which has its applicability in Andaman and Nicobar Islands empowered the District Magistrate and also the Additional District Magistrate, if the State Government so directs to be construed as reference to the Chief Judicial Magistrate and fourthly, in absence of the notification or otherwise conferment of power by the State Government upon the Additional District Magistrate to discharge the functions and duties of the District Magistrate, the Additional District Magistrate cannot exercise such power of the District Magistrate. The financial institution who is arraigned as respondent in the writ petition took a preliminary objection as to the entertainability/maintainability of the writ petition because of efficacious alternative remedy available under section 17 of the SARFAESI Act. It is further submitted that the provisions contained under section 14, is in effect, an extension of the provision contained under section 13(4) of the SARFAESI Act and in view of the specific remedy provided under section 17 of the SARFAESI Act, the Court should decline to exercise the power of judicial review under Article 226 of the Constitution of India.
(3.) THE respondents say that an application under section 14 of the SARFAESI Act was taken before the District Magistrate and in view of the conferment of the power upon the Additional District Magistrate, such application has been considered and an order is passed thereupon which cannot be said to be illegal being contrary to the spirit of section 14 of the SARFAESI Act.;