Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the parties.
Petitioner claims to be the auction purchaser of the property with reference to the proceeding taken under the SARFAESI Act by the respondent Bank. Possession of the purchased property has not been delivered. Hence, this petition.
It is claimed that the person, who had taken the loan from the Bank and was in possession of the property has left the premises and it now occupied by some unauthorized person. Petitioner, therefore, seeks a direction that such unauthorized person may be evicted and possession may be delivered to him. He has relied upon the judgment of the Division Bench of this Court in the case of Bholanath Rajpati Shukla Vs. Pubjab National Bank Recovery Deptt. & 7 others being Writ Petition No.43817 of 2014, whereby the Division Bench of this Court has issued following directions:-
"We, accordingly, direct that the bank shall within a period of two weeks of the receipt of a certified copy of this order, take necessary steps to move the District Magistrate under section 14 of the Act with a view to ensure that vacant possession of the secured asset is given to the petitioner, who admittedly is the auction purchaser. The District Magistrate shall dispose of the application in accordance with law expeditiously and within a period of one month of the receipt of the application. The District Magistrate shall appoint a date of which notice shall be given to the bank for making an inventory of the movables lying in the premises. If the bank has no lien or charge in respect of the movables lying in the premises, a notice shall be given to the borrowers by the District Magistrate for the removal of the movables and for which purpose a due and proper inventory shall be made on the date so appointed. If the borrowers fail to remain present on the date appointed for making the inventory, the bank shall take necessary steps in accordance with law immediately thereafter, and without any delay make an inventory jointly with a representative of the District Magistrate with a view to enable the petitioner to be placed in vacant possession of the premises. The bank shall thereafter be at liberty to deal with the movables in accordance with law. The cost, charges and expenses in connection therewith shall be borne by the bank."
On behalf of the Bank reference has been made to the judgment of the Apex Court in the case of Harshad Govardhan Sondagar V/s International Assets Reconstruction Co. Ltd. & Ors. reported in 2014 (6) SCC page 1, wherein, Apex Court has provided that all such persons, who claim possession of the secured property on the basis of any document whatsoever in their favour and want to resist dispossession, then they must file objections to the possession notice, and the matter has to be examined by the Chief Metropolitan Magistrate/District Magistrate, as the case may be, under Section 14 of the SARFAESI Act. Certain directions have been issued by the Apex Court in the matter of consideration of the lease, as set up by the person claiming possession on the strength of the lease.
The Apex Court has explained that, as a notice under Sub-Rules (1 )and (2) of Rule-8 of the Security Interest (Enforcement) Rules, 2002, has to be affixed on the outer door or at the conspicuous place of the property and also published as sooon as possible but in any case not later than seven days from the date of taking possession, in two leading news paper, one in vernacular language having sufficient circulation in that locality, by the authorized officer. At this stage, a person in possession may deliver the possession or he may resist the deliver, if he resist the delivery of possession he has to file objection before the authorized officer and in that case the authorized officer is to make an application before Chief Metropolitan Magistrate or District Magistrate under Section 14 of the SARFAESI Act stating on affidavit accompanying the application the name and address of the person claiming to be the lessee. The Chief Metropolitan Magistrate or District Magistrate will have to give notice and affording an opportunity to the person claiming to be the lessee as well as to the secured creditor consistent with the principle of natural justice and thereafter to take a decision in the light of the judgment of the Apex Court referred to above.
If the District Magistrate comes to conclusion that there is no valid lease made either before creation of the mortgaged or that the lease is terminated, he can pass the order for delivering possession to the secured assets to the secured creditor and thereafter the possession is to be transferred to the auction purchaser.
In view of the law as explained we deems it fit to provide that the authorized officer of the Bank may affix/publish a notice, for taking possession strictly in accordance with Rule 8. If any person resists, the possession in writing the authorized officer shall make an application along with an affidavit disclosing the name of the person, who is resisting the possession to District Magistrate/Metropolitan Magistrate who shall serve a notice upon the person resisting the possession and after affording opportunity of hearing shall proceed to decide as to whether there is any valid lease in favour of the person resisting the possessin or not. If the answer is in negative, the District Magistrate may pass an order for delivery of possession to the secured creditor.
We dispose of the writ petition by requiring the Bank to act in accordance with law, preferably within two weeks' from the date of receipt of the certified copy of this order. District Magistrate is also requested to act in accordance with law without any delay.
Order Date :- 2.12.2014 RK