Chattisgarh High Court
Rahul Kumar Mishra vs Aavas Financiers Limited on 29 July, 2025
1
2025:CGHC:36941
NAFR
Digitally
signed by
AMARDEEP
AMARDEEP CHOUBEY
CHOUBEY Date:
2025.07.30
14:56:39
+0530 HIGH COURT OF CHHATTISGARH AT BILASPUR
MCC No. 761 of 2025
1 - Rahul Kumar Mishra S/o Tribhhuwan Prasad Mishra Aged About 32
Years Occupation - Private Job, R/o Pragati Nagar, Near Shiv
Mandir,bada Ashok Nagar, Gudhiyari, The. And Dist. Raipur
Chhattisgarh 492001
2 - Tribhhuwan Prasad Mishra S/o Shri Shyam Sundar Mishra Aged
About 58 Years Occupation - Private Job, R/o Pragati Nagar, Near Shiv
Mandir, Bada Ashok Nagar, Gudhiyari, The. Dis. Raipur Chhattisgarh
492001
3 - Smt. Vandana Mishra W/o Tribhhuwan Prasad Mishra Aged About
32 Years Occupation House Wife, R/o Pragati Nagar, Near Shiv Mandir,
Bada Ashok Nagar, Gudhiyari, The. And Dis. Raipur Chhattisgarh
492001
4 - Sunil Kol S/o Shri Mohan Kol Aged About 26 Years Occupation-
Private Job, R/o Ward No. 10, Kolan Tola, Dalko Kothaar, 288,
Papaundh, Sahdol, Dis. Sahdol (M.P.) 484774
... Applicants
versus
1 - Aavas Financiers Limited Through Nischal Pandey S/o Krishna
Kumar Pandey Aged About 45 Years, Presently Posted As Branch
Manager Aavas Financers Limited Bilaspur, Tehsil And District- Bilaspur,
Chhattisgarh.
2
2 - District Magistrate Cum-Collector And Others Bilaspur, District-
Bilaspur, Chhattisgarh.
... Respondents
(Cause title taken from CIS)
For Applicants : Mr. Rahul Rai through V.C. with Mr. Raman
Mishra, Advocate
For Respondent No.1 : Mr. Jitendra Gupta, Advocate
For Respondent/State : Mr. R.C.S. Deo, Panel Lawyer.
Hon’ble Shri Bibhu Datta Guru, Judge
Order on Board
29/07/2025
1. On a mention being made, the matter is take up for hearing. In
fact, in the present case, the office has pointed out a default in
respect of its maintainability.
2. By the present MCC, the applicants/respondent Nos.2 to 5 in
WPC No.386/2025, seeking restoration of WPC No.386/2025,
which was disposed of by order dated 20.01.2025 read with
subsequent modification order dated 06/03/2025 passed in MCC
No.202/2025.
3. The applicants herein preferred the MCC on the ground that the
writ petitioner/respondent No.1 herein has preferred the writ
petition by suppressing material facts and sought a direction for
initiation of proceeding under Section 14 of the the Securitisation
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short ‘the Act, 2002’) and hence,
the order dated passed on 20.01.2025 in WPC No.386/2025 read
with the order dated 06.03.2025 passed in MCC No.202/2025
3
deserves to be restored.
4. Learned counsel for the applicants would submit that the order
dated 20/01/2025 passed in WPC No. 386/2025 has been passed
without hearing the applicants herein as in the said case, no
notices were issued to them and as such, they could not point out
the facts regarding suppression of material facts by the Writ
Petitioner. He would submit that because of the order dated
20.01.2025 passed in WPC No.386/2025, the District Magistrate
is proceeding under Section 14 of the Act, 2002 despite the fact
that the Debts Recovery Tribunal on the application filed by the
applicants herein has given a liberty to them to deposit the dues
by installments.
5. On the other hand, learned counsel appearing for the Writ
Petitioner would oppose the submission made by the applicants
herein.
6. I have heard learned counsel for the parties and perused the
pleadings and documents.
7. For ready reference, paragraphs 4 & 5 of the order dated
20/01/2025 passed in WPC No. 386/2025 reads as under:-
“4. The SARFAESI Act provides that when Section 14
proceeding is moved, the concerned Officer shall, after
satisfying the contents of the affidavit, pass suitable orders
for the purpose of taking possession of the secured assets
within a period of thirty days from the date of application
and, if he fails to do it, then after recording reasons in writing
for the same, pass the order within such further period but
4not exceeding in aggregate sixty days.
5. Prima facie, the documents, in the instant case, show
that the sixty days have already elapsed much before;
therefore, the District Magistrate/respondent No.1 is directed
to conclude the proceeding under Section 14 of the
SARFAESI Act within a further period of 30 days from the
date of receipt of a copy of this order.”
8. For the sake of convenience, Section 14 of the SARFAESI Act, 2002
is quoted below :-
“14. Chief Metropolitan Magistrate or District
Magistrate to assist secured creditor in taking
possession of secured asset.-(1) Where the
possession of any secured assets is required to be
taken by the secured creditor or if any of the secured
assets is required to be sold or transferred by the
secured creditor under the provisions of this Act, the
secured creditor may, for the purpose of taking
possession or control of any such secured assets,
request, in writing, the Chief Metropolitan Magistrate or
the District Magistrate within whose jurisdiction any
such secured asset or other documents relating thereto
may be situated or found, to take possession thereof,
and the Chief Metropolitan Magistrate or, as the case
may be, the District Magistrate shall, on such request
being made to him–
(a) take possession of such asset and documents
relating thereto; and
(b) forward such assets and documents to the secured
creditor:
1[Provided that any application by the secured creditor
shall be accompanied by an affidavit duly affirmed by
the authorized officer of the secured creditor, declaring
that-
i. The aggregate amount of financial assistance granted
and the total claim of the Bank as on the date of filing
the application;
ii. The borrower has created security interest over
5various properties and that the Bank or Financial
Institution is holding a valid and subsisting security
interest over such properties and the claim of the Bank
or Financial Institution is within the limitation period;
iii. the borrower has created security interest over
various properties giving the details of properties
referred to in sub-clause (ii) above;
iv. The borrower has committed default in repayment of
the financial assistance granted aggregating the
specified amount;
v. consequent upon such default in repayment of the
financial assistance the account of the borrower has
been classified as a nonperforming asset;
vi. affirming that the period of sixty days notice as
required by the provisions of sub-section (2) of section
13, demanding payment of the defaulted financial
assistance has been served on the borrower:
vii. the objection or representation in reply to the notice
received from the borrower has been considered by the
secured creditor and reasons for non-acceptance of
such objection or representation had been
communicated to the borrower;
viii. the borrower has not made any repayment of the
financial assistance in spite of the above notice and the
Authorised Officer is, therefore, entitled to take
possession of the secured assets under the provisions
of sub-section (4) of section 13 read with section 14 of
the principal Act;
ix. that the provisions of this Act and the rules made
thereunder had been complied with:
Provided further that on receipt of the affidavit from the
Authorised Officer, the District Magistrate or the Chief
Metropolitan Magistrate, as the case may be, shall after
satisfying the contents of the affidavit pass suitable
orders for the purpose of taking possession of the
secured assets within a period of thirty days from the
date of application.]
[Provided [also] that if no order is passed by the Chief
Metropolitan Magistrate or District Magistrate within the
said period of thirty days for reasons beyond his
control, he may, after recording reasons in writing for
the same, pass the order within such further period but
not exceeding in aggregate sixty days.]
6Provided also that the requirement of filing affidavit
stated in the first proviso shall not apply to proceeding
pending before any District Magistrate or the Chief
Metropolitan Magistrate, as the case may be, on the
date of commencement of this Act.]
[(1A) The District Magistrate or the Chief Metropolitan
Magistrate may authorise any officer subordinate to
him,-
(i) to take possession of such assets and documents
relating thereto; and
(ii) to forward such assets and documents to the
secured creditor.]
(2) For the purpose of securing compliance with the
provisions of sub-section (1), the Chief Metropolitan
Magistrate of the District Magistrate may take or cause
to be taken such steps and use, or cause to be used,
such force, as may, in his opinion, be necessary.
(3) No act of the Chief Metropolitan Magistrate or the
District Magistrate [any officer authorised by the Chief
Metropolitan Magistrate or District Magistrate] done in
pursuance of this section shall be called in question in
any court or before any authority.”
9. As per the applicants herein, they have already approached the
DRT against the proceeding under taken as per the Act of 2002
and the same is pending consideration before the DRT.
According to them, the DRT has given a liberty to them to
deposit the dues by installment. Thus, once the applicants have
availed the alternative remedy, this Court, cannot interfere or
pass any order in the instant MCC prohibiting the proceeding
under Section 14 of the Act, 2002.
10. It is the trite law that when the statutory remedy available under
the DRT Act and the Act of 2002, this Court cannot interfere
because the same have serious adverse impact on the right of
7
banks and other financial institutions to recover their dues. Even
such practice has been deprecated by the Supreme Court in a
catena of decisions (Union Bank of India vs. Satyawati
Tondon & Ors. [2010] 8 SCC 110).
11. By placing reliance upon the decision rendered in Satyawati
Tondon (supra), recently the Supreme Court in the matter of
PHR Invent Educational Society vs. UCO Bank & Ors.
reported in (2024) 6 SCC 579 reiterated the same view.
12. Applying the well settled principles of law to the facts of the
present case and for the reasons mentioned above and also the
fact that the matter is pending before the DRT, as the applicants
would submit that the DRT passed an order to clear the dues on
installments basis. I am of the considered view that no case is
made out by the applicants to recall/modify the order dated
20/01/2025 passed in WPC No. 386/2025.
13. Apart from above, the MCC is not the specific provision
provided under the law for seeking setting aside or recall or
restoration of the order passed by the Court. It is normally filed
for modification or some correction in the order on the ground of
typographical mistake.
14. As a sequel, the instant MCC is dismissed on merits as also on
the ground of maintainability. However, the applicants would be
at liberty to raise their grievance with regard to the alleged
8
proceedings under taken by the concerned District Magistrate, if
any, before the DRT, if so advised.
Sd/-
(Bibhu Datta Guru)
Judge
Gowri/
Amardeep