Smt. Talat Farzana And Another vs State Of U.P. And 2 Others
2021 Latest Caselaw 4602 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 39
 

 
Case :- WRIT - C No. - 9139 of 2021
 

 
Petitioner :- Smt. Talat Farzana And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Awadhesh Kumar Mishra
 
Counsel for Respondent :- C.S.C.,Yashwant Singh
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the parties and perused the record.

The present petition is directed against the order dated 26.12.2020 under Section 14 of SARFAESI Act, 2002 passed by the respondent no.2.

The order impugned records that the notices under Section 13(2) and 13(4) of the SARFAESI Act 2002 had been issued on 28.6.2019 and 4.12.2019; respectively. The bank had, thereafter, moved an application seeking possession of the secured asset under Section 14 of the Act, 2002.

It is admitted fact of the matter that the petitioners have straightaway come to this Court for challenging the order passed under Section 14 of the SARFAESI Act without challenging the notices under Section 13(4) of the Act 2002, for which remedy of appeal under Section 17 of the Act, 2002 is available to them.

The challenge to the order passed by the respondent no.2 is on the ground that it is an ex-parte order.

A perusal of the order dated 26.12.2020 indicates that no notice for providing opportunity was given to the petitioners/borrowers in the proceedings under Section 14 of the SARFAESI Act 2002.

The Division Bench judgment and order appended at page '41' of the paper book passed in Writ C no.38578 of 2018 (Kumkum Tentiwal vs State of U.P and 3 others) has held that while passing order under Section 14 of the Act, 2002, notice or opportunity of hearing to the borrower or the guarantor is necessary.

Having noticed the above, it is found that the measures taken under Section 14 of SARFAESI Act, 2002 is a coercive measure for taking possession of the secured asset, observance of principles of natural justice while passing the order under Section 14 of the Act is necessary.

For the categorical facts recorded in the order impugned that no notice had been issued to the borrower, this Court finds that the order dated 26.12.2020 cannot be sustained.

While quashing the same, the present petition is allowed. The matter is remitted to the District Magistrate/Collector, Moradabad for fresh decision on Section 14 of the Act, 2002 by giving due notice and opportunity to the petitioners.

It goes without saying that it is open for the petitioners to challenge the measures taken by the respondent bank including the notice under Section 14 of the SARFAESI Act, 2002 by filing appeal under Section 17 of the Act, 2002.

Order Date :- 25.3.2021

Harshita