VIJAY TIMBER INDUSTRIES PRIVATE LIMITED Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) The present petition is filed by the petitioners under Articles 14, 19(1)(g), 226 and 227 of the Constitution of India as well as under the provision of the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act") read with Rules made thereunder for the prayers inter alia that appropriate writ, order or direction may be issued quashing and setting aside the orders passed by the Additional District Magistrate dated 19.09.2013, 23.10.2013 and 20.01.2014 and also the order passed by the respondent no.2 dated 10.12.2013 on the grounds stated in the memo of petition.

(2.) Heard learned advocate, Shri Bharat Jani for the petitioners, learned AGP Shri Venugopal Patel for the respondent nos.1 and 2 and learned advocate, Ms.Nalini Lodha for the respondent no.3.

(3.) Learned advocate, Shri Jani referred to the background of the case and submitted that the petitioners are the borrowers, however, the procedure for the recovery under the SARFAESI Act has not been followed, particularly, Section 14 of the SARFAESI Act provides for the procedure, which has not been followed. Learned advocate, Shri Jani referred to Section 14 of the SARFAESI Act and submitted that as provided in Section 14(c) of the SARFAESI Act, affidavit is required to be submitted, which is not submitted by the respondent-Bank. For that purpose, he pointedly referred to Page No.250 and submitted that affidavit is affirmed subsequently as the dates would indicate. He submitted that inward stamp number refers to 18th March, 2013, whereas the affidavit before the Notary is affirmed on 25th March, 2013. Learned advocate, Shri Jani specifically referred to Section 14 of the SARFAESI Act and submitted that it provides that the District Magistrate to assist secured creditor in taking possession of the secured asset, however proviso refers to the application by the secured creditor stating that it shall be accompanied by affidavit duly affirmed by the authorized officer of the secured creditor. Learned advocate, Shri Jani submitted that such affidavit has not been filed. He further submitted that there is no notice to the tenant and the objections or the representation of the borrower have not been considered. He, therefore submitted that without providing sufficient opportunity, the impugned orders passed by the District Magistrate is in violation of the provision of the SARFAESI Act as well as the Rules of natural justice.