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3. It is urged that the petitioner was enjoying peaceful possession of the property since the date of purchase till a notice under section 13(4) of the SARFAESI Act dated 19.2.2015 was affixed on the premises in question. It is averred that the petitioner was shocked to see the said notice as the petitioner had not taken any loan on the said property in question nor mortgaged the property to respondent No.1 Federal Bank Limited. It is urged that the petitioner is not an overnight inductee, inducted by the borrower to defeat the rights of respondent No.1. The petitioner aggrieved by the notice dated 19.2.2015 filed an appeal under section 17 of SARFAESI Act before the Debt Recovery Tribunal, Delhi (hereinafter referred to as „DRT‟), on 23.03.2015. It was urged that all the original documents regarding the property are in possession of the petitioner and that the respondent No.1 Bank does not have any valid equitable mortgage in its favour. Interim relief was also prayed for. Some hearings took place before the DRT. Notice was also issued to respondent Federal Bank Ltd. It is further averred that on 22.7.2015 the petitioner was surprised to see a notice of the same date affixed on the property in question mentioning that receiver Shri Prashant Verma respondent No.2 appointed by the Court of Chief Metropolitan Magistrate would take possession of the property in question with police aid after 15 days of the notice i.e. on or before 6.8.2015. It is stated that it was from the said notice that the petitioner learnt that the Chief Metropolitan Magistrate had passed the order on 6.7.2015 in exercise of powers under Section 14 of SARFAESI Act. It is urged that before the Chief Metropolitan Magistrate, respondent No.1/Bank intentionally concealed that an appeal under section 17 of the SARFAESI Act filed by the petitioner is pending before the DRT and notice has already been issued on the same. It is further urged that in the affidavit filed by the concerned Chief Manager before the CMM, a false and incorrect statement was made that an equitable mortgage has been created by the borrower by deposit of the original title deed whereas the fact is that the petitioner is in possession of all the original documents of the property. Hence, the present writ petition was filed seeking the aforenoted reliefs. This court on 04.08.2015 directed the parties to maintain status quo.

4. Respondent No.1/Bank has filed a counter affidavit. It is urged that the writ petition seeks to challenge the constitutional validity of section 14 of the SARFAESI Act and this issue is no more res integra in view of the judgment of the Supreme Court in Mardia Chemicals Ltd. vs. Union of India, (2004) 4 SCC 311 which upheld the constitutional validity of the entire act except section 17(2). It is also pointed out that the property was mortgaged by late Shri Anand Kumar Chona, owner of the property with respondent No.1 as a collateral security for the credit facilities availed by M/s.S.S.Computer Galaxy, a proprietorship concern of Shri Sunit Kumar Chona by way of a registered mortgage deed. As the debt became bad, a recovery suit was instituted by respondent No.1 before this Court which was registered as CS(OS)605/1997. This was later transferred to Tis Hazari District Court. A judgment and money decree, i.e. a preliminary decree was passed by the Court of Additional District Judge on 04.08.2005 which was later on modified on 19.09.2007. A final decree was passed in favour of Respondent No.1 Bank on 17.3.2008. It is further urged that respondent No.1 took possession of the mortgaged property on 19.2.2015, which action was challenged by the petitioner before DRT under section 17(1) of the SARFAESI Act. Hence, no relief can be sought by the petitioner on this aspect before this Court. It is further urged that the orders of CMM passed under section 14 of the SARFAESI Act could also have been challenged by the petitioner before DRT. It is stated that as the petitioner has an alternate remedy the present writ petition would not lie.

18. Reference may also be had to the judgment of the Full Bench of this Court in Amish Jain & Anr. vs. ICICI Bank Limited, AIR 2013 Delhi 172 which observed as follows:-

"17. Further, the relief to be granted by the DRT in an appeal under Section 17(1) of the SARFAESI Act, if successful, is (under Section 17(3)) of restoration of possession/ management of the secured asset to the borrower and to pass such order as it may consider appropriate and necessary in relation to the recourse taken by the Banks /Financial Institution under Sub-Section (4) of Section 13 of the SARFAESI Act. This relief also, we find, the DRT within whose jurisdiction the secured asset to be so restored to the borrower is situated, to be the most competent to grant and implement. The orders which the DRT under Section 17(3) of the SARFAESI Act may be required to pass may also entail exercising jurisdiction over the CMM / DM which is approached by the Bank /Financial Institution for assistance for taking over possession / management. Notice in this regard may be taken of Kanaiyalal Lalchand Sachdev Vs. State of Maharashtra; (2011) 2 SCC 782 and of United Bank of India Vs. Satyawati Tandon : (2010) 8 SCC 110 suggesting that appeal under Section 17(1) can be filed after the Bank has filed application under Section 14, even if possession / management has not been taken. In such a situation, DRT may be required to issue direction to the CMM / DM approached by the Bank /Financial Institution...."

20. Further, in United Bank of India vs.Satyawati Tondon (supra) the Supreme Court held that in case any person has a grievance against an action taken under section 13(4) or section 14 of the Act, the remedy is to file an application under section 17(1) before DRT. To the same effect is the judgment of the Supreme Court in Kanaiyalal Lalchand Sachdev & Ors. v. State of Maharashtra & Ors. (supra) and the full bench of this High Court in Amish Jain vs. ICICI Bank Ltd. (supra).

21. The reliance of the petitioner on the judgment of the Supreme Court in the case of Harshad Govardhan Sondagar vs. International Assets Reconstruction Company Limited and Others.(supra) is misplaced. That was a case in which the appellants before the Supreme Court were tenants of different premises which had been mortgaged to different banks as securities for loans. The tenants were in physical possession of the property as lessees. The Supreme Court in those facts held that there is no provision under Section 13 of the SARFAESI Act that a lease in respect of a secured asset shall stand determined when the secured creditor decided to take measures under Section 13 of the said Act. The court further held that without the determination of a valid lease, the possession of the lessee is lawful and such lawful possession of the lessee has to be protected by all courts and tribunals. The court further held that the possession of the secured asset from a lessee in lawful possession under a valid lease is not required to be taken under the SARFAESI Act and the CMM does not have any power under Section 14 of the SARFAESI Act to take possession of the secured asset from such a lessee. Hence, the premises was held to be outside the scope of Section 14 of the SARFAESI Act. It was in those facts that the Supreme Court concluded that where a lessee is in possession, the CMM in a petition under Section 14 will give an opportunity of hearing to the person claiming to be a lessee.