# Jaiswal v. Chief Metropolitan Magistrate - **Citation:** (2010) 2 ILRA 604 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2010-05-10 - **Case number:** Civil Misc. Writ Petition No. 24789 of 2010 - **Bench:** Satya Poot Mehrotra, S.C.Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaiswal-v-chief-metropolitan-magistrate-41643 - **Pages:** 3 ## Headnote Constitution of India Art 226 Writ Petition-alternative namely-order passed under section 13(4) of Securisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002-petitioner can approach before Debt Recovery tribunal for getting possession of secured property Petition not maintainable Held Para 15, 16 and 17 Even though, the petitioners may not have remedy under Section 17 of the aforesaid Act against the order passed under Section 14 of the aforesaid Act but the petitioners may approach the Debts Recovery Tribunal against the measures taken by the respondent no.4-Bank under sub-section (4) of Section 13 of the aforesaid Act. Thus, the petitioners have got an alternative remedy under Section 17 of the aforesaid Act against the measure taken under sub-section (4) of Section 13 of the aforesaid Act for taking possession of the property given as security. Reference in this regard may be made to a decision of this Court in Virendra Kumar Jaiswal V. Chief Metropolitan Magistrate and another, 2009 (10) ADJ 203 (DB)=2010 (1) AWC 832 (DB). Having regard to the nature of controversy involved in the present Writ Petition, we are of the opinion that it would be appropriate that the petitioners be relegated to avail the alternative remedy of filing application/appeal under Section 17 of the aforesaid Act. Case law discussed: 2009 (10) ADJ 203 (DB),2010 (1) AWC 832 (DB). ## Text 604 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 advancing interest of agriculturist while considering the expression 'agriculturist' and agricultural purpose' used in context with U.P. Agricultural Credit Act, 1973. However, the definition of 'agriculture and agricultural purpose' used therein can not be imported in context with the notification under this Act wherein word 'agriculturalist' has been used and has been defined differently in the explanation to the notification itself having a plain, simple and clear meaning which would not include activity of cold storage within those of an agriculturist. 8. In view of the above, the benefit of remission as per the above notification is not admissible to the petitioner. Therefore, the authorities have committed no error in refusing the relief as claimed by the petitioner. 9. The writ petition as such is devoid of merit and is dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.05.2010 BEFORE THE HON'BLE SATYA POOT MEHROTRA, J. THE HONBLE S.C.AGARWAL, J. Civil Misc. Writ Petition No. 24789 of 2010 Smt. Raj Rani Singh and another ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri H.A.B. Sinha Sri Archana Singh Counsel for the Respondent: Sri D. Vaish, C.S.C. Constitution of India Art 226 Writ Petition-alternative namely-order passed under section 13(4) of Securisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002-petitioner can approach before Debt Recovery tribunal for getting possession of secured property Petition not maintainable Held Para 15, 16 and 17 Even though, the petitioners may not have remedy under Section 17 of the aforesaid Act against the order passed under Section 14 of the aforesaid Act but the petitioners may approach the Debts Recovery Tribunal against the measures taken by the respondent no.4-Bank under sub-section (4) of Section 13 of the aforesaid Act. Thus, the petitioners have got an alternative remedy under Section 17 of the aforesaid Act against the measure taken under sub-section (4) of Section 13 of the aforesaid Act for taking possession of the property given as security. Reference in this regard may be made to a decision of this Court in Virendra Kumar Jaiswal V. Chief Metropolitan Magistrate and another, 2009 (10) ADJ 203 (DB)=2010 (1) AWC 832 (DB). Having regard to the nature of controversy involved in the present Writ Petition, we are of the opinion that it would be appropriate that the petitioners be relegated to avail the alternative remedy of filing application/appeal under Section 17 of the aforesaid Act. Case law discussed: 2009 (10) ADJ 203 (DB),2010 (1) AWC 832 (DB). (Delivered by Hon'ble Satya Poot Mehrotra, J.) 1. It appears that the petitioners took loan from the respondent no.4-Punjab National Bank. 2 All] Smt. Raj Rani Singh and another V State of U.P. and others 605 2. The petitioners committed default in payment of the said loan. Consequently, proceedings under the Securisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 have been initiated against the petitioners. 3. Notice under Section 13(2) of the aforesaid Act was issued to the petitioner. The said notice was followed a notice dated 27.2.2008 issued under Section 13(4) of the aforesaid Act. An application under Section 14 of the aforesaid Act was filed by the respondent no.4 -Bank for taking possession of the property given by the petitioners as security for the aforesaid loan. 4. By the Order dated 26.10.2009 (Annexure 1 to the Writ Petition), the Additional District Magistrate (Finance and Revenue), Agra has issued directions for handing over the physical and actual possession of the property given as security by the petitioners to the respondent no.4-Bank, 5. The petitioners have filed the present Writ Petition, interalia, praying for quashing of the said Order dated 26.10.2009. 6. We have heard Smt. Archana Singh, learned counsel for the petitioners, the learned Standing Counsel appearing for the respondent nos. 1 to 3 and Sri D.Vaish, learned counsel for the respondent no.4 -Bank. 7. Sri D.Vaish, learned counsel for the respondent no.4 -Bank has raised preliminary objection that the petitioners have got an alternative remedy under Section 17 of the aforesaid Act, and the Writ Petition is liable to be dismissed on the said ground. 8. We have considered the submissions made by Sri D.Vaish, learned counsel for the respondent no.4 -Bank, and we are inclined to accept the same. 9. Sub-section (4) of Section 13 of the aforesaid Act, interalia, provides that in case the borrower fails to discharge his liability in full within the period specified in sub-section (2) of Section 13, the secured creditor may take recourse to one or more of the measures mentioned in sub-section (4) of Section 13 for recovery of his secured debt. 10. Clause (a) of sub-section (4) of Section 13 of the aforesaid Act contemplates as one of the measures, taking possession of the secured asset of the borrower including the right to transfer by way of lease , assignment or sale for ٛ uthorize the secured asset. 11. Sub-section (1) of Section 14 of the aforesaid Act, interalia, provides that where the possession of any secured asset is required to be taken by the secured creditor, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate to take possession thereof. 12. Thus, sub-section (1) of Section 14 of the aforesaid Act is for the purpose of execution of the measures which the secured creditor has decided to take under sub-section (4) of Section 13 of the aforesaid Act. Sub-section (1) of Section 14 of the aforesaid Act is thus, consequential provision in order to 606 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 execute the measures which the creditor has decided to take under sub-section (4) of Section 13 of the aforesaid Act. Sub-section (1) of Section 17 of the aforesaid Act, interalia, provides that any person (including borrower), aggrieved by any of the measures referred to sub-section (4) of Section 13 taken by the secured creditor or his ٛ uthorized officer, may make an application to the Debts Recovery Tribunal within forty five days from the date on which such measures had been taken. 13. It will thus, be seen that the petitioners have got alternative remedy under Section 17 of the aforesaid Act. 14. It is true that Section 17 of the aforesaid Act does not provide remedy against the order passed under Section 14 of the aforesaid Act. It is also true that in view of sub-section (3) of Section 14 of the aforesaid Act, the action taken under Section 14 of the said Act attains finality. However, as noted above, Section 14 of the aforesaid Act is merely a consequential provision and is for the purpose of executing the measures taken under subsection (4) of Section 13 of the aforesaid Act. The order under Section 14 of the aforesaid Act is merely a consequential order. 15. Even though, the petitioners may not have remedy under Section 17 of the aforesaid Act against the order passed under Section 14 of the aforesaid Act but the petitioners may approach the Debts Recovery Tribunal against the measures taken by the respondent no.4-Bank under sub-section (4) of Section 13 of the aforesaid Act. Thus, the petitioners have got an alternative remedy under Section 17 of the aforesaid Act against the measure taken under sub-section (4) of Section 13 of the aforesaid Act for taking possession of the property given as security. 16. Reference in this regard may be made to a decision of this Court in Virendra Kumar Jaiswal V. Chief Metropolitan Magistrate and another, 2009 (10) ADJ 203 (DB)=2010 (1) AWC 832 (DB). 17. Having regard to the nature of controversy involved in the present Writ Petition, we are of the opinion that it would be appropriate that the petitioners be relegated to avail the alternative remedy of filing application/appeal under Section 17 of the aforesaid Act. 18. In view of the above, the Writ Petition is liable to be dismissed on the ground of alternative remedy available to the petitioners. 19. The Writ Petition is accordingly dismissed on the ground of availability of alternative remedy to the petitioners. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 26.05.2010 BEFORE THE HONBLE AMITAVA LALA, A.C.J. THE HON'BLE SHABIHUL HASNAIN, J. Civil Misc. P.I.L. No. 29169 of 2010 U.P. Madhymic Shikshak Sangh and another ...Petitioner Versus Union of India and others ...Respondent Counsel for the Petitioners: Sri Alok Dwivedi Sri R.K. Ojha