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Calcutta High Court
And Anr vs Anima Samanta And Ors on 19 August, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
2025:CHC-OS:153-DB
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM JUDGMENT AND ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
APO/30/2024
IA No.GA/1/2024
THE AUTHORISED OFFICER, HINDUJA LEYLAND FINANCE LIMITED
AND ANR.
-Versus-
ANIMA SAMANTA AND ORS.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant : Mr. Siddhartha Banerjee, Adv.
Mr. Subhankar Chakraborty, Adv.
Mr. Saptarshi Bhattacharjee, Adv.
Ms. Sayani Gupta, Adv.
For the Respondent No.1 : Mr. Arijit Bardhan, Adv.
Ms. Saheli Bose, Adv.
Mr. Gourab Mondal, Adv.
For the Respondent Nos. 2 to 5 : Mr. Sarosij Dasgupta, Adv.
Mr. Anchayita De, Adv.
HEARD ON : 19.08.2025 DELIVERED ON : 19.08.2025 DEBANGSU BASAK, J.:-
1. Appeal is at the behest of a secured creditor and directed against the
order dated January 24, 2024 passed by the learned Single Judge in
WPO/1792/2023.
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2. By the impugned order, learned Single Judge disposed of the writ
petition by directing the appellants to seal the entrance to the ground
and first floor of the concerned building by leaving open the access to the
upper floors i.e., second and third floors through the common staircase
as mentioned in the report of the learned Special Officer. Learned Single
Judge restrained the appellants from preventing the access of the private
respondents in the appeal to the second and third floors through the
common staircase in any manner whatsoever. Learned Single Judge
allowed the appellants to keep the ground and the first floors, which are
secured assets, sealed.
3. Learned advocate appearing for the appellants submits that, the property
in question lying and situated at Mouza – Udayrajpur, J.L. No.3, R.S.
No.6, Khatian Nos.4232, 4238, 4239 and 4240, R.S. Dag No.1275, L.R.
Dag No.2891 under the jurisdiction of the Madhyamgram Municipality,
Ward No.5, Police Station- Madhyamgram, Distrct- North 24 Parganas
was mortgaged to the appellant no.1 as security for loan obtained by a
borrower.
4. Learned advocate appearing for the appellants submits that, the
borrower obtained credit facilities from the appellant no.1. The account
of the borrower became a Non Performing Asset (NPA) and was classified
to be so. Thereafter, the appellants issued a notice under Section 13(2)
of the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) to the
borrower.
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5. Learned advocate appearing for the appellants submits that, appellants
took measures under Section 13(4) of the Act of 2002 in respect of the
mortgaged immovable property. Since the appellants were unable to
obtain actual physical possession of such mortgaged immovable
property, an application was made before the jurisdictional District
Magistrate under Section 14 of the Act of 2002 in which the concerned
District Magistrate directed the possession of the mortgaged property to
be made over to the appellants.
6. Learned advocate appearing for the appellants submits that, the
appellants were put into possession of the secured asset being the
mortgaged immovable property, pursuant to the order passed by the
jurisdictional District Magistrate.
7. Learned advocate appearing for the appellants submits that, the private
respondents filed a writ petition in which the impugned order was
passed. Relying upon 2010 (8) SCC 110 (United Bank of India vs.
Satyawati Tandon & Ors.) and 2023 (17) SCC 311 (South Indian Bank
Ltd. & Ors. vs. Naveen Mathew Philip & Anr.), learned Advocate
appearing for the appellants submits that, the writ petition was not
maintainable. He refers to Section 17 of the Act of 2002 and submits
that, there was statutory alternative remedy available to the private
respondents which the private respondent did not avail of.
8. Relying upon 2025 SCC Online SC 1443 (PNB Housing Finance Ltd.
vs. Manoj Saha & Anr.), learned advocate appearing for the appellants
submits that, even if it is assumed that the private respondents were
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tenants in respect of the immovable property concerned, then also the
remedy was under Section 17 of the Act of 2002 and the writ petition was
not maintainable.
9. Referring to Section 17 of the Transfer of Property Act, 1872, learned
advocate appearing for the appellants submits that, any accession to the
mortgaged property enures to the benefit of the mortgagee. Therefore,
the appellants can justifiably claim security interest on the two upper
floors also.
10. Learned advocate appearing for the private respondent submits that, the
property mortgaged with the appellants was the ground and first floors.
In this regard, he refers to the application made under Section 14 of the
Act of 2002 before the District Magistrate by the appellants. He submits
that, the private respondent is a tenant in respect of the second and
third floors.
11. Learned advocate appearing for the private respondent submits that,
measure under Section 13(4) of the Act of 2002 can be taken only in
respect of secured asset. The second and third floors of the immovable
property cannot be construed to be a secured asset within the meaning
of the Act of 2002 for the appellants to invoke the provisions of the Act of
2002.
12. In support of the contention that, since second and third floors were
never mortgaged in favour of the appellants, the private respondent
possess the remedy of filing a civil suit and not excluding a writ petition,
learned advocate appearing for the private respondents relies upon 2018
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SCC Online Ker 5144 (Mrs. Elsamma & Ors. vs. The Kaduthuruthy
Urban Co-operative Bank Ltd. & Ors.).
13. Learned advocate appearing for the private respondent draws the
attention of the Court to the schedule of the deed claimed to be
mortgaged with the appellants. He submits that, the schedule refers to
only the ground and first floor. Moreover, the application under Section
14 of the Act of 2002 made by the appellants before the jurisdictional
District Magistrate refers to the ground and first floor. The order of the
District Magistrate also refers to the ground and first floor. Therefore,
the second and third floors of the premises concerned can never form
part of the so called secured assets of the appellants. Therefore, the
appellants cannot take possession of the second and third floors.
14. Learned advocate appearing for the private respondents submits that, in
view of Section 17(3)(b) of the Act of 2002 a Tribunal can, at best, restore
possession of the secured assets. Since the second and third floors are
not secured assets of the appellants, approach to the Tribunal is illusory.
While the Tribunal, at best, can restore possession of the secured assets,
the second and third floors not being a secured asset, the Tribunal,
therefore, would be unable to direct restoration of possession of such
floors.
15. Learned advocate appearing for the private respondent submits that, in
the factual matrix of the present case, the writ petition was maintainable.
Since the appellants cannot claim security interest over the second and
third floors of the property concerned, question of approaching the
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Tribunal under Section 17 of the Act of 2002 did not arise.
Consequently, the writ petition was maintainable.
16. Referring to the contents of the impugned order, learned advocate
appearing for the private respondents submits that, the learned Single
Judge took pains to appoint a Special Officer in order to find out the
situation at the locale. He points out that the private respondent and the
borrower are not any way connected. There is no relationship of
borrower and lender between the private respondent and the appellant
no.1. Therefore, he submits that the impugned order should be
sustained.
17. The fact that there is a loan account which stands classified as NPA
between the borrower and the appellant no.1 is admitted.
18. The private respondent claim to be a tenant and in no way connected
with the borrower. Private respondent also claims no relationship of
borrower and lender vis-à-vis the appellant no.1. Claim of tenancy is in
respect of second and third floors of an immovable property which is
claimed to be mortgaged in favour of the appellant no.1.
19. Fact that the original title deed in respect of the immovable property is
with the appellant no.1 as and by way of a mortgage in respect of the
loan amount taken by the borrower is undisputed.
20. Contention of the private respondent is that qua tenant and by reason of
the recital to the original title deed of the immovable property speaking of
the ground and first floor and the private respondent being on the second
and third floors, there cannot be a valid mortgage of the second and third
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floors in favour of the appellant no.1. Consequently, the second and
third floors cannot be considered to be a security interest in favour of the
appellant no.1.
21. As noted above, the original title deed to the land in question is with the
appellant no.1. Title deed speaks of a schedule of ground and first floor.
Apparently, there was an improvement to the building concerned
subsequent to the execution of the title deed. The date when such
improvement took place and whether such improvement was prior to the
mortgage or subsequent to the mortgage is not on record. The date of
creation of the tenancy in favour of the private respondents is also not on
record.
22. We repeatedly requested the private respondent to produce documents of
creation of tenancy and to inform the Court as to the date of creation of
the tenancy. However, the private respondent failed to do so.
23. Section 70 of the Transfer of Property Act, 1872 speaks of accession to
mortgaged property. It prescribes that, if after the date of mortgage any
accession is made to the mortgaged property, the mortgagee, in absence
of a contract to the contrary, shall, for the purpose of security, be entitled
to such accession.
24. There is nothing on record to establish that, the appellant no.1 will not
be entitled to the accession to the immovable property concerned
subsequent to the mortgage created. We hasten to add that we are not
returning a finding that the second and third floors were erected
subsequent to the mortgage in absence of any materials before us.
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25. As matters relating to the second and third floors stands, the same needs
to be considered by a forum vested with jurisdiction to decide such issue
after affording the parties an opportunity to lead evidence.
26. Issues before us are whether there is statutory alternative remedy
available to the private respondent in respect of the measures taken
under Section 14 of the Act of 2002, and if the answer to such issue is in
the affirmative, then whether the writ petition is maintainable.
27. Admittedly, measures under Section 13(4) of the Act of 2002 were taken
in respect of the immovable property concerned. Possession of the
immovable property concerned was taken under Section 14 of the Act of
2002 on October 13, 2024.
28. Scope and ambit of Section 17 of the Act of 2002 and the issue of
maintainability of a writ petition in view of existence of statutory
alternative remedy under Section 17 of the Act of 2002 was considered
by the Supreme Court in Satyawati Tandon & Ors. (supra) as well as
Naveen Mathew Philip & Anr. (supra). In both of those authorities the
Supreme Court held that the disputes relating to a measure taken under
Section 13(4) are to be decided upon by the Tribunal under Section 17 of
the Act of 2002. Both the authorities are categorical in stating that writ
petition should not be entertained by the High Courts where there is a
statutory alternative remedy available.
29. It is the contention of the private respondents that in view of Section
17(3)(b) of the Act of 2002, all that the Tribunal can do under Section 17
of the Act of 2002 in relation to a measure taken under Section 13(4) is
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to restore the possession of a secured asset. According to the private
respondent, since the second and third floors are not secured asset,
therefore, the Tribunal will not possess requisite jurisdiction over the
same.
30. This contention of the private respondent overlooks both Section 17(1)
and Section 17(3)(a) of the Act of 2002. Section 17(1) of the Act of 2002
permits any person to approach the Tribunal if aggrieved by a measure
taken under Section 13(4). Section 17(3)(a) provides that, a Tribunal, on
being satisfied that measures taken were not in accordance with law, can
declare such recourse to any one or more measures referred to in Section
13(4) taken by the secured creditor as invalid and thereafter direct
restoration of possession.
31. The issue as to whether or not the second and third floors are mortgaged
with the appellant no.1 and, therefore, a secured asset of the appellant
no.1, is an issue which a Tribunal under Section 17(1) of the Act of 2002
is competent to decide since a measure under Section 13(4) was taken in
respect thereof. One of the issues which can be validly raised under
Section 17 of the Act of 2002 is whether there exist any security interest
in respect of the secured asset sought to be proceeded against. The issue
as to whether or not the property in question is a secured asset can be
decided by the Tribunal. A Tribunal can do so under Section 17(1) of
the Act of 2002 as the validity and legality of the measures taken under
Section 13(4) can be questioned. To answer such issue the Tribunal
needs to arrive at the finding that a security interest in respect of the
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secured asset exists. Therefore, it is required to find out whether or not
the property concerned is a secured asset. The private respondent is a
person who can be construed to be a person aggrieved by the measure
taken under Section 13(4) of the Act of 2002 by the appellant no.1 and
therefore, falling under Section 17.
32. The Kerala High Court in Mrs. Elsamma (supra) while deciding the
maintainability of a civil suit seeking a decree of permanent prohibitory
injunction regarding an immovable property claimed not to be a secured
asset of the Bank held that the civil suit was maintainable. It held that
parties need be relegated to Section 17 of the Act of 2002 if it is found
that the acts complained of are in relation to a secured asset. In the
facts of the present case, we are not dealing with a civil suit, nor are we
dealing with a property in respect of which a measure under Section
13(4) of the Act of 2002 was not taken.
33. In view of the discussions above, we are of the view that the writ petition
is not maintainable since there is statutory alternative remedy for the
respondent no.1.
34. The impugned order dated January 24, 2024 is set aside. Status with
regard to the property be restored to the position as on the date of filing
of the writ petition forthwith.
35. APO/30/2024 along with IA No.GA/1/2024 are disposed of without any
order as to costs.
36. At this stage, learned counsel appearing for the respondent no.1 prays
for stay of operation of this judgment and order delivered today.
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37. While considering the prayer for stay, we called upon learned Advocate
for the respondent no.1 to inform the Court as to the date when the
possession was taken and the date of filing of the writ petition.
38. These dates assume significance since under Section 17 of the Act of
2002, a person aggrieved by a measure taken under Section 13(4) of the
Act of 2002 needs to challenge such action within 45 days from the date
of the measure taken.
39. Possession was taken on October 13, 2024.
40. Learned advocate for the respondent no.1 is unable to provide the date of
the writ petition. We are unable to determine as to whether the
respondent no.1 approached the writ Court within the statutory period of
45 days from the date of taking possession. Since, there is no conclusive
evidence of the respondent no.1 approaching the writ Court within the
statutory period prescribed under Section 17 of the Act of 2002, we are
unable to accept the prayer for stay of this judgment and order. Such
prayer is declined.
(DEBANGSU BASAK, J.)
41. I agree.
(MD. SHABBAR RASHIDI, J.)
A/s.
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