Union Bank Of India vs M/S Ap Automobiles
2021 Latest Caselaw 15214 Guj

      C/SCA/4366/2020                                         ORDER DATED: 28/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 4366 of 2020
                                 With
         CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
            In R/SPECIAL CIVIL APPLICATION NO. 4366 of 2020
                                 With
             R/SPECIAL CIVIL APPLICATION NO. 13144 of 2021
==========================================================
                                 UNION BANK OF INDIA
                                        Versus
                                 M/S AP AUTOMOBILES
==========================================================
Appearance:
MR DEVANG D TRIVEDI(2503) for the Petitioner(s) No. 1
MS SANGEETA PAHWA, for the Respondent(s) No. 1
MR ISHAN JOSHI, for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4
==========================================================
CORAM:           HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                         Date : 28/09/2021
                          ORAL ORDER

1. Heard, learned Advocate Mr. Devang Trivedi for the Petitioner-Bank in Special Civil Application No. 4366 of 2020 with Civil Application No.1 of 2020 and learned Advocate Ms. Sangeeta Pahwa for the Auction Purchaser and the petitioner in Special Civil Application No.13144 of 2021.

2. By preferring Special Civil Application No. 4366 of 2020, the petitioner Union Bank of India has prayed for the following reliefs:

"8. ...

(a) YOUR LORDSHIPS may be pleased to admit and allow the present petition;

(b) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, order or

C/SCA/4366/2020 ORDER DATED: 28/09/2021

direction in the nature of mandamus or issue any other appropriate writ order or direction by quashing and setting aside the impugned order dated 27.02.2019 passed by respondent no.4 Collector and District Magistrate, Kheda-Nadiad in application filed under Section 14 of the SARFAESI Act being S.R. No. of 06/2018 Annexed at "Annexure C" in the interest of justice.

(c) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, order or direction in the nature of mandamus or issue any other appropriate writ order or direction by directing respondent no.4 Collector and District Magistrate, Kheda- Nadiad to grant an application and provide assistance to take physical possession of the mortgaged security described in "Schedule A" of the application being Plot Block No. 1255, admeasuring 5160 square meters, Nr. Hotel Shalimar, N.H.-8, Village: Sandhana, Taluka: Matar, District: Kheda which is filed under Section 14 of the SARFAESI Act being S.R. No. of 06/2018 Annexed at "Annexure A" in the interest of justice.

(d) YOUR LORDSHIPS may also be pleased to direct Respondent No. 4 to arrange handing over physical possession of secured assets

C/SCA/4366/2020 ORDER DATED: 28/09/2021

to the Petitioner within 30 days or within any other reasonable period as may be deemed fit and proper by YOUR LORDSHIPS.

(e) ..."

3. The brief facts of the case are that the Petitioner-Bank through its authorized officer filed an application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after, the 'SARFAESI Act') for taking physical possession of the immovable property of the mortgagee being Application No. 06 of 2018 before Respondent No.4.

3.1 It is further the case of the petitioner-Bank that all particulars of the borrowers, i.e. Respondent Nos. 1 to 3, herein, was provided in the said application along with an affidavit, as per the provisions of Section 14 of the SARFAESI Act.

3.2 The petitioner-Bank also annexed list of documents along with the application including the deed of mortgage duly registered with the Sub-Registrar, Matar, of the property in question as well as the Index having mutation entry dated 4th May, 2009. It was also pointed out in the said application that the mortgage was created in

C/SCA/4366/2020 ORDER DATED: 28/09/2021

favour of the petitioner-Bank by Respondent Nos. 1 to 3 while availing the financial assistance of Rs.45,00,000/- (Forty Five Lakh only).

3.3 It is the case of the petitioner-Bank that it has sold the property in question to the auction purchaser, i.e. the petitioner of Special Civil Application No. 13144 of 2021, as per the registered Sale Deed dated 10th January, 2019 for Rs.48,50,000/- (Forty Eight Lakh Fifty Thousand Only).

3.4 The sale deed was executed in favour of Fazal Anwarhusen of Zenith Inc. with regard to the property in question, which was mortgaged with the petitioner-Bank pursuant to the public auction of the property in question held on 13th December, 2010, as per the provisions of the SARFAESI Act. The petitioner of Special Civil Application No. 13144 of 2021 made an offer to purchase the property in question on "As is where is basis" for the price of Rs.46,44,000/- (Forty Six Lakh Forty Four Thousand only) and on being a successful and highest bidder, the Auction Purchaser paid Rs.48,50,000/- (Forty Eight Lakh Fifty Thousand)in the year 2011.

3.5 It appears that since then the auction purchaser is not handed over the physical

C/SCA/4366/2020 ORDER DATED: 28/09/2021

possession of the property in question and therefore the auction purchaser filed an application before the Debt Recovery Tribunal ("DRT') for a direction to the petitioner-Bank to handover the physical possession of the property in question to the auction purchaser which was purchased in the year 2010-2011 by filing Securitization Application NO. 160 of 2015. The DRT, Ahmedabad, vide order dated 8th February, 2017, disposed of the said application by directing the Petitioner-Bank to hand over the physical possession of the property in question as and when the Collector & District Magistrate or his subordinate hands over the same to the petitioner-Bank. However, the Collector & District Magistrate, Kheda, vide order dated 27th February, 2019 rejected the application filed by the petitioner-Bank under Section 14 of the SARFAESI Act on the ground that the entry of Registered Sale Deed No. 467, Dated: 21st April, 2010, in the Revenue Records is mutated by Respondent Nos. 1 to 3 prior to the entry of the mortgage created by the petitioner-Bank over the property in question and accordingly it was held that the application filed by the petitioner would not fall within the purview of Section 14 of the SARFAESI Act.

4. Learned Advocate Mr. Trivedi appearing for the

C/SCA/4366/2020 ORDER DATED: 28/09/2021

petitioner-Bank submitted that Respondent No.4- the Collector & District Magistrate, Kheda, by not granting the assistance to the petitioner to get the physical possession of the property in question as per Section 14 of the SARFAESI Act has traveled beyond the scope and ambit of Section 14 of the SARFAESI Act by declining the assistance as sought for by the petitioner-Bank to get the physical possession of the mortgaged property against which the petitioner-Bank had advanced loan of Rs.45,00,000/- (Forty Five Lakh only) to Respondent Nos. 1 to 3. It was further submitted that Respondent No.4 by not granting the assistance to get the physical possession of the property in question has deprived the petitioner-Bank from handing over the physical possession of the same to the auction purchaser pursuant to the Sale Deed executed by the petitioner-Bank under the provisions of Section 13 of the SARFAESI Act.

4.1 It was submitted that Respondent No.4 - the Collector & District Magistrate, Kheda has no authority to reject the application in view of the provisions of Section 14 of the SARFAESI Act and the assistance ought to have been given to the petitioner-Bank to take the physical possession of the property in question which is mortgaged by Respondent Nos. 1 to 3 with the

C/SCA/4366/2020 ORDER DATED: 28/09/2021

Petitioner-Bank.

4.2 It was submitted that the impugned order passed by Respondent No.4 is without authority and contrary to the provisions of Section 14 of the SARFAESI Act and therefore the same is required to be quashed and set aside and Respondent No.4 requires to be directed to provide assistance to the petitioner-Bank to take over the physical possession of the property in question.

4.3 It was also submitted that Respondent No.4 cannot adjudicate upon the issue as to whether the application filed by the petitioner- Bank falls within the purview of Section 14 of the SARFAESI Act or not, more particularly when the petitioner-Bank has filed an affidavit along with requisite documents as is prescribed under Section 14 of the SARFAESI Act.

4.4 It was submitted that Respondent No.4 was supposed to discharge only ministerial ac by providing assistance to the petitioner-Bank to take over the physical possession of the property in question as per the provisions of the SARFAESI Act.

5. On the other hand, learned Advocate Ms. Pahwa

C/SCA/4366/2020 ORDER DATED: 28/09/2021

appearing for the auction purchaser and the petitioner in Special Civil Application No. 13144 of 2020 and in Civil Application No.1 of 2020 submitted that the auction purchaser has approached this Court because he is deprived of the physical possession of the property in question as the petitioner-Bank has not handed over the same, till date.

5.1 It was submitted that it is true that though the auction purchaser has purchased the property in question on "As is where is basis" but at the same time the petitioner-Bank is bound to handover the physical possession of the property in question as per the provisions of the SARFAESI Act especially when the DRT while passing the order dated 8th February, 2017 in Securitization Application No. 160 of 2015 has directed the petitioner-Bank to handover the physical possession of the property in question to the auction purchaser as and when the Collector & District Magistrate or his subordinate hands over the same to the petitioner-Bank.

6. Though served none appeared for Respondent Nos. 1 to 3, i.e. the original borrowers and the original owners of the property in question which was mortgaged by them with the petitioner-Bank.

C/SCA/4366/2020 ORDER DATED: 28/09/2021

7. Having heard the learned Advocates for the parties and having perused the material on record, it is not in dispute that the petitioner- Bank had advanced a loan of Rs.45,00,000/- (Forty Five Lakh only) to Respondent Nos. 1 to 3 by creating mortgage on the property in question being Plot / Block No. 1255, ad-measuring 5160 square meters, situated at Village: Sandhana, Taluka: Matar, District: Kheda.

8. The petitioner-Bank filed Application No.6 of 2018 before Respondent No.4-the Collector & District Magistrate, Kheda, on conducting the auction in the year 2010-2011 and the auction purchaser was declared the successful bidder who offered Rs.48,50,000/- (Forty Eight Lakh Fifty Thousand only) for the property in question in the year 2010. The aforesaid sale was on 'As is where is basis' as the petitioner-Bank did not have the physical possession of the property in question, at the relevant point of time.

9. It is also pertinent to note that the Sale Deed is executed in favour of the auction purchaser in the year 2019 without handing over the physical possession of the property in question.

C/SCA/4366/2020 ORDER DATED: 28/09/2021

10. The DRT by order dated 8th February, 2017 passed in Securitization Application No. 160 of 2017 has already directed the petitioner-Bank to handover the possession to the auction purchaser after Respondent No.4- the Collector & the District Magistrate provides assistance to the petitioner-Bank to take over the physical possession of the property in question.

11. Under such circumstances, the petitioner-Bank filed an application under Section 14 of the SARFAESI Act on 3 rd May, 2018, before Respondent No.4 to take over the physical possession of the property in question. It would therefore be necessary to refer to Section 14 of the SARFAESI Act which reads thus:

"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 assets 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

C/SCA/4366/2020 ORDER DATED: 28/09/2021

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.

(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 done in pursuance of this section shall be called in question in any court or before any authority."

From perusal of the aforesaid provision of SARFAESI Act which is interpreted time and again by this Court as well as by the Hon'ble Apex Court wherein it has been held that the Collector & the District Magistrate is not supposed to adjudicate upon the applicability of the provisions of SARFAESI Act or with regard to the title of the property in question but the

C/SCA/4366/2020 ORDER DATED: 28/09/2021

Collector & the District Magistrate is required to provide assistance to the secured creditors to get the physical possession.

12.             The        Apex    Court           in    the        case           of
'Authorized               Officer,        Indian         Bank         Vs.          D.

Visalakshi & Another'1 has held as under:

"35. Indisputably, the expressions "CMM" and "DM" have not been defined in the 2002 Act. That definition can thus, be traced to the provisions of Cr.P.C.. It is also well established by now that the 2002 Act, is a self contained code. Concernedly, the nature of inquiry to be conducted by the designated authorities under the 2002 Act, is spelt out in Section 14 of the 2002 Act. The same is circumscribed and is limited to matters specified in Clauses

(i) to (ix) of the first proviso in sub- section (1) of Section 14 of the 2002 Act, inserted in 2013. Prior to the insertion of that proviso, it was always understood that in such inquiry, it is not open to adjudicate upon contentious pleas regarding the rights of the parties in any manner. The stated authorities could only do verification of the genuineness of the plea and upon being satisfied that it is genuine, the adjudication thereof could then be left to the Court of competent jurisdiction.

36. Suffice to observe that an inquiry

1 (2019) 20 SCC 47

C/SCA/4366/2020 ORDER DATED: 28/09/2021

conducted by the stated authority under Section 14 of the 2002 Act, is a sui generis inquiry. In that, majorly it is an administrative or executive function regarding verification of the affidavit and the relied upon documents filed by the parties. That inquiry is required to be concluded within the stipulated time frame. While undertaking such an inquiry, as is observed by this Court, the authority must display judicious approach, in considering the relevant factual position asserted by the parties. That presupposes that it is a quasi judicial inquiry though, a non judicial process.

The inquiry does not result in adjudication of inter se rights of the parties in respect of the subject property or of the fact that the transaction is a fraudulent one or otherwise.

37. Notably, the powers and functions of the CMM and the CJM are equivalent and similar, in relation to matters specified in the Cr.P.C.. These expressions (CMM and CJM) are interchangeable and synonymous to each other. Moreover, Section 14 of the 2002 Act does not explicitly exclude the CJM from dealing with the request of the secured creditor made there under. The power to be exercised under Section 14 of the 2002 Act by the concerned authority is, by its very nature, non judicial or State's coercive power. Furthermore, the borrower or the personsclaiming through borrower or for that matter likely to be affected by the proposed action being in possession of the subject property, have

C/SCA/4366/2020 ORDER DATED: 28/09/2021

statutory remedy under Section 17 of the 2002 Act and/or judicial review under Article 226 of the Constitution of India. In that sense, no prejudice is likely to be caused to the borrower/lessee; nor is it possible to suggest that they are rendered remediless in law. At the same time, the secured creditor who invokes the process under Section 14 of the 2002 Act does not get any advantage much less added advantage. Taking totality of all these aspects, there is nothing wrong in giving expansive meaning to the expression "CMM", as inclusive of CJM concerning non- metropolitan area, who is otherwise competent to discharge administrative as well as judicial functions as delineated in the Cr.P.C. on the same terms as CMM. That interpretation would make the provision more meaningful. Such interpretation does not militate against the legislative intent nor it would be a case of allowing an unworthy person or authority to undertake inquiry which is limited to matters specified in Section 14 of the 2002 Act.

38. Such a view has been taken by the High Court of Kerala as early as in 2006 and on the same lines, are the decisions of the other High Courts (Karnataka, Allahabad and Andhra Pradesh). Be it noted, the challenge to the decision of the High Court of Kerala was unsuccessful before this Court in SLP (C) No.1671 of 2009, which came to be dismissed on 2nd February, 2009.

C/SCA/4366/2020 ORDER DATED: 28/09/2021

39. Now we may turn to the decision in Standard Chartered Bank (supra). The Court was called upon to consider the argument that secured creditor before invoking the remedy under Section 14 of the 2002 Act, must necessarily make an attempt to take possession of the secured assets and can take recourse thereto only if he fails in that effort and encounters resistance to such an attempt. While considering that argument, the Court analyzed Sections 13, 14 and 15 of the 2002 Act and opined that Section 14 of the 2002 Act enables the secured creditor who desires to seek the assistance of "State's coercive power" for obtaining possession of the secured assets to make a request in writing to the authority designated therein, within whose jurisdiction the secured asset is located. It also noted that the authority after receiving such request under Section 14 of the 2002 Act, was not expected to do any further scrutiny of the matter except to verify from the secured creditor whether notice under Section 13(2) of the Act has already been given or not and whether the secured asset is located within his jurisdiction. There is no adjudication of any kind at this stage. The Court also noticed in paragraph 23 of the reported judgment that after amendment of Section 14 of the 2002 Act, by inserting first proviso therein, the designated authority has to satisfy itself only with regard to the matters mentioned in clauses (i) to

(ix). In paragraph 25 of this decision, the Court noted as follows:

C/SCA/4366/2020 ORDER DATED: 28/09/2021

"25. The satisfaction of the Magistrate contemplated under the second proviso to Section 14(1) necessarily requires the Magistrate to examine the factual correctness of the assertions made in such an affidavit but not the legal niceties of the transaction. It is only after recording of his satisfaction the Magistrate can pass appropriate orders regarding taking of possession of the secured asset."

40. The Court then went on to observe in paragraph Nos.33 and 36 of the reported judgment as follows:

"33. We are of the opinion that the High Court clearly erred in recording such a conclusion. The language of Rule 8 does not demand such a construction.

On the other hand, a Magistrate whose functioning is structured by the Code of Criminal Procedure is required to act in accordance with the provisions of the said Code unless expressly ordained otherwise by any other law. It is not a case that Cr.P.C. never prescribed for the procedure to be followed by the Magistrate in a case where the Magistrate is required to take possession of property. For example, under Section 83 of the Code, a criminal court is authorized to attach the movable or immovable property or both belonging to a proclaimed offender. Subsections (3) and (4) to Section 83 specifically provide that once an order of attachment under subsection (1) is made by the criminal court, the property which is the subject matter of such attachment shall either be seized or

C/SCA/4366/2020 ORDER DATED: 28/09/2021

taken possession of as the case may be depending upon the fact whether the property is movable or immovable. Both the subsections contemplate the appointment of Receiver. It is declared under sub section (6) that the powers, duties and liabilities of a Receiver appointed under Section 83 are the same as those of a Receiver appointed under the Code of Civil Procedure, 1908.

XXX XXX XXX

36. Thus, there will be three methods for the secured creditor to take possession of the secured assets: 36.1.

(i) The first method would be where the secured creditor gives the requisite notice under Rule 8(1) and where he does not meet with any resistance. In that case, the authorized officer will proceed to take steps as stipulated under Rule 8(2) onward to take possession and thereafter for sale of the secured assets to realize the amounts that are claimed by the secured creditor.

36.2. (ii) The second situation will arise where the secured creditor meets with resistance from the borrower after the notice under Rule 8(1) is given. In that case he will take recourse to the mechanism provided under Section 14 of the Act viz. making application to the Magistrate. The Magistrate will scrutinize the application as provided in Section 14, and then if satisfied, appoint an officer subordinate to him as provided under Section 14(1A) to take possession of the assets and documents. For that purpose the

C/SCA/4366/2020 ORDER DATED: 28/09/2021

Magistrate may authorize the officer concerned to use such force as may be necessary. After the possession is taken the assets and documents will be forwarded to the secured creditor.

36.3. (iii) The third situation will be one where the secured creditor approaches the Magistrate concerned directly under Section 14 of the Act. The Magistrate will thereafter scrutinize the application as provided in Section 14, and then if satisfied, authorize a subordinate officer to take possession of the assets and documents and forward them to the secured creditor as under clause 36.2.(ii) above.

36.4. In any of the three situations above, after the possession is handed over to the secured creditor, the subsequent specified provisions of Rule 8 concerning the preservation, valuation and sale of the secured assets, and other subsequent rules from the Security Interest (Enforcement) Rules, 2002, shall apply."

41. Concernedly, the Court was not called upon to consider the specific issue that arises for our consideration, in this batch of cases. To wit, whether the CJM is competent to deal with the request made by the secured creditor under Section 14 of the 2002 Act in the same manner as can be done by the CMM in metropolitan areas and DM in non-metropolitan areas.

Nevertheless, what is significant to note is that this decision clearly delineates

C/SCA/4366/2020 ORDER DATED: 28/09/2021

the nature of inquiry required to be conducted by the authority referred to in the Section 14 of the 2002 Act. By its very nature the inquiry, is an administrative or executive measure and to borrow the phrase used in the said judgment, "State's coercive power" for obtaining possession of the secured assets. It is possible to suggest that as the authority is required to make inquiry and pass an order, it would partake the colour of being a quasi-judicial inquiry. In any case, the stated authority is not empowered to adjudicate on any issue(s) that may be raised regarding the rights of the concerned parties.

42. Reliance was also placed on the exposition in Harshad Govardhan Sondagar (supra), wherein the appellants claimed to be tenants of a mortgaged premises (secured asset); and as borrowers (landlord/owner thereof) had committed default, the secured creditor had invoked provisions of 2002 Act to enforce the secured asset. In that backdrop, application was moved before the CMM, Mumbai under Section 14 of the 2002 Act to take possession of the premises and handover the possession thereof to the secured creditor. While dealing with the challenge to this action of the secured creditor, the Court noticing Section 14 of the 2002 Act concluded that for the purpose of transferring the secured asset and for realizing the secured asset, the secured creditor will require the assistance of the CMM or the DM for taking

C/SCA/4366/2020 ORDER DATED: 28/09/2021

of possession of a secured asset from the lessee, where the lease stands determined by any of the modes mentioned in Section 111 of the Transfer of Property Act. The Court then went on to examine the question about the remedies available to the lessee where he is threatened to be dispossessed by any action taken by the secured creditor under Section 13 of the 2002 Act. In that context, the Court noted that Section 34 of the 2002 Act makes it amply clear that no injunction can be granted by any Court or other authority in respect of any action taken or to be take in pursuance of any power conferred by or under the 2002 Act. Even this decision, if we may say so, deals with entirely different issue then the question under consideration in the present cases.

43. It is no more res integra that the CJM is equated with the CMM for the purposes referred to in the Cr.P.C.; and those expressions are used interchangeably being synonymous of each other. This Court in All India Judges' Association (supra), in paragraph 31, opined as under:

"31. As we have already mentioned, the Shetty Commission had recommended that the Chief Metropolitan Magistrates should be in the cadre of District Judges. In our opinion, this is neither proper nor practical. The appeals from orders passed by the Chief Metropolitan Magistrates under the provisions of the Code of Criminal Procedure are required to be heard by the Additional Sessions Judge or the Sessions Judge. If both

C/SCA/4366/2020 ORDER DATED: 28/09/2021

the Additional Sessions Judge and the Chief Metropolitan Magistrate belong to the same cadre, it will be paradoxical that any appeal from one officer in the cadre should go to another officer in the same cadre. If they belong to the same cadre, as recommended by the Shetty Commission, then it would be possible that the junior officer would be acting as an Additional Sessions Judge while a senior may be holding the post of the Chief Metropolitan Magistrate. It cannot be that against the orders passed by the senior officer it is the junior officer who hears the appeal. There is no reason given by the Shetty Commission as to why the post of the Chief Metropolitan Magistrate be manned by the District Judge, especially when as far as the posts of the Chief Judicial Magistrates are concerned, whose duties are on a par with those of the Chief Metropolitan Magistrate, the Shetty Commission has recommended, and in our opinion rightly, that they should be filled from amongst Civil Judges (Senior Division). Considering the nature and duties of the Chief Judicial Magistrates and the Chief Metropolitan Magistrates, the only difference being their location, the posts of Chief Judicial Magistrate and Chief Metropolitan Magistrate have to be equated and they have to be placed in the cadre of Civil Judge (Senior Division). We order, accordingly."

44. Be it noted that Section 14 of the 2002 Act is not a provision dealing with the jurisdiction of the Court as such. It is a remedial measure available to the

C/SCA/4366/2020 ORDER DATED: 28/09/2021

secured creditor, who intends to take assistance of the authorized officer for taking possession of the secured asset in furtherance of enforcement of security furnished by the borrower. The authorized officer essentially exercises administrative or executive functions, to provide assistance to the secured creditor in terms of State's coercive power to effectuate the underlying legislative intent of speeding the recovery of the outstanding dues receivable by the secured creditor. At best, the exercise of power by the authorized officer may partake the colour of quasi-judicial function, which can be discharged even by the Executive Magistrate. The authorized officer is not expected to adjudicate the contentious issues raised by the concerned parties but only verify the compliance referred to in the first proviso of Section 14; and being satisfied in that behalf, proceed to pass an order to facilitate taking over possession of the secured assets."

12. In view of the above dictum of law Respondent No.4-Collector & the District Magistrate, Kheda, could not have rejected the application of the petitioner-Bank to provide assistance under Section 14 of the SARFAESI Act to get the physical possession of the property in question. Therefore, the impugned order dated 27th February, 2019, passed by Respondent No.4 is contrary to the provisions and the settled legal position and therefore the same is hereby quashed and set

C/SCA/4366/2020 ORDER DATED: 28/09/2021

aside.

13. The petitioner-Bank is directed to file a fresh application before Respondent No.4- Collector & the District Magistrate, Kheda, within the period of two weeks from today to get the assistance for the purpose of taking over physical possession of the property in question as provided under Section 14 of the SARFAESI Act and Respondent No.4 is directed to pass necessary order in accordance with law to provide the assistance to the petitioner-Bank by passing appropriate orders under Section 14 of the SARFAESI Act within the period of two weeks from the date of receipt of such application.

14. With the aforesaid directions, Special Civil Application No. 4366 of 2020 is allowed to the aforesaid extent.

15. In view of the disposal of Special Civil Application No. 4366 of 2020, Special Civil Application No. 13144 of 2021 and Civil Application 1 of 2020 would not survive and the same are also disposed of keeping all the rights and contentions of the parties open.

(BHARGAV D. KARIA, J) UMESH/-