HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - C No. - 16438 of 2011 Petitioner :- Abdul Karim Respondent :- Addl. D.M. (Finance & Revenue) Meerut And Others Petitioner Counsel :- M.A. Qadeer,Shamim Ahmad Respondent Counsel :- Yashwant Singh Hon'ble Satya Poot Mehrotra,J.
Hon'ble Rajesh Chandra,J.
From the averments made in the Writ Petition, it appears that loan was taken by the respondent No.3 (Anand Kumar) from the respondent No.2- Allahabad Bank. The property in question, namely, House No. 1/1-A, Jamna Nagar, Hapur Road, Meerut, was given as security for the said loan. The petitioner claims to be tenant of the said house. As the respondent No. 3 committed default in payment of loan, proceedings under The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "the Securitization Act") have been initiated against the respondent No.3. An order dated 31st August, 2010 under Section 14 of the Securitization Act was passed by the Additional District Magistrate (Finance & Revenue), Meerut for taking possession of the aforesaid house (secured asset). The petitioner claiming himself to be tenant of the aforesaid house (secured asset) filed an application before the Additional District Magistrate (Finance & Revenue), Meerut, whereupon, by the order dated 27th January, 2011, the enforcement of the aforesaid order dated 31st August, 2010 passed under Section 14 of the Securitization Act was stayed. However, subsequently, by the order dated 8th February, 2011, the Additional District Magistrate (Finance & Revenue), Meerut gave fifteen days' time to the petitioner for vacating the aforesaid house (secured asset). The petitioner has, thereafter, filed the present Writ Petition impugning the proceedings being taken under the Securitization Act, which would result in the eviction of the petitioner from the aforesaid house. From the averments made in the Writ Petition, it transpires that a Suit being Original Suit No. 169 of 2011 was filed by the petitioner seeking similar relief. Sri M.A. Qadeer, learned Senior Counsel assisted by Sri Shamim Ahmad, learned counsel for the petitioner states that the said Suit has, since, been withdrawn by the petitioner, and an order dated 8th April, 2011 has been passed by the Trial Court in this regard. We have heard Shri M.A. Qadeer, learned Senior Counsel assisted by Sri Shamim Ahmad, learned counsel for the petitioner, and the learned Standing Counsel appearing for the respondent No.1, and Shri Yashwant Singh, learned counsel for the respondent No.2, and perused the record. Shri Yashwant Singh, learned counsel for the respondent No.2 submits that the petitioner has alternative remedy of filing application/ appeal under Section 17 of the Securitization Act and, therefore, the present Writ Petition is liable to be dismissed. Shri M.A. Qadeer, learned Senior Counsel appearing for the petitioner submits that the petitioner is not impugning the proceedings for recovery of the loan, and he is simply seeking to protect his eviction from the aforesaid house (secured asset) and, therefore, the present Writ Petition may be considered by this Court. We have considered the submissions made by the learned counsel for the parties.
Section 13 of the Securitization Act in-so-far as is relevant, is produced below :
"13. Enforcement of security interest.-(1)...............
(2) ?.....
(3) ?.....
(3-A) ?....
(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely :-
(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secure asset;
[(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset:
Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the debt:
Provided further that where the management of whole, of the business or part of the business is severable, the secured creditor shall take over the management of such business of the borrower which is relatable to the security or the debt;]
(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;
(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.
(5) to (13) ?.........."
Section 17 of the Securitization Act in-so-far as is relevant, is re-produced as under :-
"17. Right to appeal.- (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application along with such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:
[Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.] [Explanation.- For the removal of doubts it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of section 17.] [(2) ?...........
(3) ?..........
(4) ?.........
(5) ?........
(6) ?........
(7) ?........]"
Reading the aforesaid provisions together, it will be noticed that if any person is aggrieved by any of the measures referred to in sub-section (4) of Section 13 of the Securitization Act taken by the secured creditor or his authorised officer under Chapter III of the said Act, such person may make an application/appeal along with such fee, as may be prescribed before the Debts Recovery Tribunal. One of the measures contemplated in clause (a) of sub-section (4) of Section 13 of the Securitization Act is taking possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset. The petitioner in the present case is evidently aggrieved by the action being taken under the Securitization Act for taking possession of the aforesaid house (secured asset), as such action may result in the eviction of the petitioner. The petitioner is thus aggrieved by the measures being taken under sub-Section (4) of Section 13 of the Securitization Act. Evidently, therefore, the petitioner has right to file application / appeal under Section 17 of the Securitization Act. Having regard to the facts and circumstances of the case and having considered the nature of the controversy involved in the present Writ Petition, we are of the view that it will be appropriate that the petitioner be relegated to the alternative remedy available to him under Section 17 of the Securitization Act. We, therefore, dismiss the Writ Petition on the ground of availability of alternative remedy of filing application / appeal under Section 17 of the Securitization Act before the Debts Recovery Tribunal. We may, however, observe that in case the petitioner files application / appeal before the Debts Recovery Tribunal under Section 17 of the Securitization Act within four weeks from today, such application/appeal will be entertained without raising any objection as to the limitation for filing such application/appeal. It is made clear that we have not adjudicated the claims of the petitioner on merit.
Order Date :- 21.4.2011 Ak F/AFR