Gauhati High Court
M/S. Megh Stone Crusher Unit And Anr vs The State Of Assam And 6 Ors on 27 March, 2019
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
Page No.# 1/4
GAHC010061112019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1997/2019
1:M/S. MEGH STONE CRUSHER UNIT AND ANR.
REP. BY ITS PROPRIETOR MUKIBUR RAHMAN, AGE 42 YEARS, BIHUBOR,
P.O.- BIHUBOR, DIST. SIVASAGAR, ASSAM, PIN- 785687.
2: MUKIBUR RAHMAN
SON OF LATE LUTFUR RAHMAN
R/O. VILLAGE- BIHUBOR
P.O. BIHUBOR
DIST. SIVASAGAR
ASSAM
PIN- 785687
VERSUS
1:THE STATE OF ASSAM AND 6 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI-6.
2:THE DISTRICT MAGISTRATE
SIVASAGAR DISTRICT
P.O. AND DIST.- SIVASAGAR
ASSAM
PIN- 785640.
3:CIRCLE OFFICER
NAZIRA REVENUE CIRCLE
P.O. NAZIRA
DIST.- SIVASAGAR
ASSAM
PIN- 785640.
4:STATE BANK OF INDIA
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REP. BY ITS GENERAL MANAGER
STATE BANK BHAVAN
MADAME CAMA ROAD
NARIMAN POINT
MUMBAI
MAHARASHTRA- 400021.
5:THE CHIEF MANAGER
STATE BANK OF INDIA
SANTAK BRANCH
P.O. SANTAK
DIST.- SIVASAGAR
ASSAM
PIN- 785687.
6:ASSISTANT GENERAL MANAGER
STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH
M.G. ROAD
NA-ALI
JORHAT
P.O.- JORHAT
DIST.- JORHAT
ASSAM
PIN- 785001.
7:AUTHORISED OFFICER
UNDER THE SECURITISATION AND RECONSTRUCTION OF FINANCIAL
ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT
2002. STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH
M.G. ROAD
NA-ALI
JORHAT
P.O. JORHAT
DIST.- JORHAT
ASSAM. PIN- 785001
Advocate for the Petitioner : MR. K M HALOI
Advocate for the Respondent : GA, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
27.03.2019 Heard Mr. K. M. Haloi, learned counsel for the petitioner.
By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 05.02.2019 passed by the District Magistrate, Sivasagar whereby the District Magistrate deputed Executive Magistrate-cum-Circle Officer, Nazira Revenue Circle to maintain law and order during the period when authorized officer of State Bank of India would take over possession of the mortgaged property.
It appears that petitioner had availed loan from the State Bank of India (SBI) but failed to repay the same. For such default, SBI invoked provisions of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).
At that stage, petitioner had approached this Court by filing WP(C) No. 8224/2018 which was disposed of vide order dated 12.12.2018 with the observation that if action is taken under Section 13(4) of the SARFAESI Act petitioner would have the alternative remedy of appeal under Section 17 of the said Act before the Debts Recovery Tribunal.
Thereafter, impugned order dated 05.02.2019 was passed by the District Magistrate.
A perusal of the impugned order would go to show that authorised officer of SBI had moved an application before the District Magistrate stating that possession of the secured assets of the borrower would be taken over for which presence of Executive Magistrate was required to maintain law and order.
Under Sub-section (4) of Section 13, 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 measures mentioned therein to recover his secured debt, one of the measures being taking over possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the dues.
Page No.# 4/4 Under Section 17 of the SARFAESI Act, 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 by his authorised officer, may make an application before the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken.
In so far the present case is concerned, though the impugned order dated 05.02.2019 has been issued, the measure(s) contemplated under Sub-section (4) of Section 13 have not been taken. Even if any of the measures is taken, remedy of the petitioner as rightly pointed out by this Court is under Section 17 and not by way of a writ petition.
Petitioner may avail his remedy under Section 17 of the SARFAESI Act.
With the above observation, writ petition is disposed of.
JUDGE Comparing Assistant