# Pnb Housing Finance Ltd v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-14
- **Case number:** Writ C No. 9723 of 2024
- **Bench:** Rajan Roy, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pnb-housing-finance-ltd-v-state-of-u-p-ors-54524
- **Pages:** 4

## Headnote

Law
-
Constitution
of
India,1950
-
Article
226
-
Writ
-
Maintainability - SARFAESI Act, 2002 -
Section 14 - Execution of an order passed
u/s 14 of the Act, 2002 was sought by
secured creditor - Alternative remedy to
approach the DM or CJM available -
Though the order passed u/s 14 was
challenged by the borrower u/s 17, but
there is no interim order - Effect - Held, it
is the District Magistrate or the Chief
Metropolitan/Judicial
Magistrate
are
obliged to take possession of such assets
and documents relating thereto, and to
forward such assets & documents to the
secured creditor - It is not the secured
creditor, who after obtaining an order u/s
14 of the Act, 2002, is supposed to run
from pillar to post or to the police
personnel to get the order executed -
High
Court
granted
liberty
to
the
petitioner/ secured creditor to move the
application
before
the
Chief
Judicial
Magistrate for execution of the order
passed u/s 14 - High Court further
directed the officer to verify as to whether
there is any interim order in favour of
borrower or not in a proceeding u/s 17.
(Para 4, 5 and 6)
Writ petition disposed off. (E-1)
List of Cases cited:

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES
service, due to which the services could not
be available the public at large, clearly
casts stigma upon the petitioner. Any
person who is said to have "absconded"
meaning thereby he has deliberately fled
from his duty without obtaining proper
action, reflects adversely on the conduct of
any comment servant and hence casting an
implication
that
the
petitioner
has
absconded his cast stigma, and such an
importation could not have been levelled
without giving him proper opportunity of
hearing. In the present case no show cause
notice nor any opportunity was given to the
petitioner, and accordingly such an order
casting stigma on him could not have been
passed and hence the same is illegal and
arbitrary and libel to be set aside.

In the light of the above, the writ
petition is allowed. Order dated 30.11.2021
is hereby quashed. The petitioner is
directed
to
be
reinstated
with
all
consequential benefits from the date of his
appointment.
----------
(2024) 11 ILRA 58
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.11.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Writ C No. 9723 of 2024

Pnb Housing Finance Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Nitesh Kumar Tripathi, Saumya

Counsel for the Respondents:
C.S.C.
A.
Recovery
Law
-
Constitution
of
India,1950
-
Article
226
-
Writ
-
Maintainability - SARFAESI Act, 2002 -
Section 14 - Execution of an order passed
u/s 14 of the Act, 2002 was sought by
secured creditor - Alternative remedy to
approach the DM or CJM available -
Though the order passed u/s 14 was
challenged by the borrower u/s 17, but
there is no interim order - Effect - Held, it
is the District Magistrate or the Chief
Metropolitan/Judicial
Magistrate
are
obliged to take possession of such assets
and documents relating thereto, and to
forward such assets & documents to the
secured creditor - It is not the secured
creditor, who after obtaining an order u/s
14 of the Act, 2002, is supposed to run
from pillar to post or to the police
personnel to get the order executed -
High
Court
granted
liberty
to
the
petitioner/ secured creditor to move the
application
before
the
Chief
Judicial
Magistrate for execution of the order
passed u/s 14 - High Court further
directed the officer to verify as to whether
there is any interim order in favour of
borrower or not in a proceeding u/s 17.
(Para 4, 5 and 6)
Writ petition disposed off. (E-1)
List of Cases cited:
1. Writ C No. 8867 of 2024; Bank of Baroda Vs
St. of U.P. & ors. decided on 25.10.2024
2. Writ C No. 8867 of 2024; Bank of Baroda Vs
St. of U.P. & anr.decided on 25.10.2024
(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Brij Raj Singh, J.)

Heard.

1. This is a petition under Article 226
of the Constitution of India seeking
execution / enforcement of the order dated
13.09.2024 passed in Case No. 74239 of
2024 under Section 14 of the SARFAESI
Act, 2002 (hereinafter referred to as "the
11 All. Pnb Housing Finance Ltd. Vs. State of U.P. & Ors.
59
Act, 2002"), as actual physical possession
of the secured asset has not yet been
provided to the petitioner, who is the
secured creditor.

2. The order dated 13.09.2024 has
been challenged by the borrower under
Section 17 of the Act, 2002 before Debt
Recovery Tribunal but, there is no interim
order. If it is so, i.e. there is no stay, then it
is for the officer who has passed the order
to ensure its execution in terms of Section
14 (1-A), (2) & (3) of the Act, 2002
which reads as under:-

"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 asset and
documents to the secured creditor:"

[Provided that any application by
the secured creditor shall be accompanied
by an affidavit duly affirmed by the
authorised 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 various 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 non-performing 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
60 INDIAN LAW REPORTS ALLAHABAD SERIES
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.]

Provided
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 subsection
(1),
the
Chief
Metropolitan
Magistrate or 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."

4.
The
above
quoted
provision
evidently says that the District Magistrate
or the Chief Metorpolitan Magistrate may
authorize 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. This makes intention of
the legislature clear, that, it is the District
Magistrate or the Chief Metropolitan
Magistrate (who in the State of U.P. would
be the Chief Judicial Magistrate) are
obliged to take possession of such assets
and documents relating thereto, and to
forward such assets & documents to the
secured creditor. Therefore, it is not the
secured creditor who after obtaining an
order under Section 14 of the Act, 2002
who is supposed to run from pillar to post
or to the police personnel to get the order
executed, it is the obligation of the
aforesaid officer. Further, for the purpose
of securing compliance with the provisions
of Sub-section (1) of the Act, 2002, the
Chief Metropolitan Magistrate or 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. This also makes it clear that it is
the statutory obligation of the District
Magistrate or the Chief Metropolitan
Magistrate / Chief Judicial Magistrate, to
take or cause to be taken such steps and
use, or cause to be used, such force, as
may, in his opinion, be necessary. In fact, a
separate execution case or enforcement
case need not be registered either by the
District Magistrate or the Chief Judicial
Magistrate, but after passing of requisite
11 All. Hindustan Aeronautics Ltd. Vs. Hindustan Aeronautics Karmchari Sabha & Ors.
61
orders under Section 14 of the Act, 2002,
its execution should also be ensured and
after possession has actually been handed
over to the secured creditor, only then the
proceedings under Section 14 should be
consigned and treated as concluded, not
prior to it. It appears that after passing of
such orders, the District Magistrates or the
Chief
Judicial
Magistrates
leave
the
secured creditor to the mercy of the police
personnel, as if, it is the secured creditor
who has to get the order enforced through
the police, which is not the correct legal
position. In judgment dated 25.10.2024
rendered in Writ C No. 8867 of 2024, Bank
of Baroda Vs. State of U.P. and 8 others,
we have already held that there is no
requirement of issuing notice to the
Borrower in such proceedings under
Section 14. However, we must clarify that a
reasonable time say of at least 15 days
should be given to the occupant of the
secured asset to vacate the premises so that
he may shift his belongings.

5. In view thereof, the petitioner is
granted liberty to move an application
before the Chief Judicial Magistrate who
has passed the order on 13.09.2024, who
shall take cognizance for enforcement of
his orders in terms of the aforesaid
provisions, and then ensure its execution /
enforcement at the earliest, keeping in mind
the intent and object of the provision
contained in the Act, 2002 as the recent
judgment of this Court dated 25.10.2024
passed in Writ C No. 8867 of 2024, Bank
of Baroda Vs. State of U.P. and 8 others.

6. This order is being passed without
prejudice to the rights of the borrower who
has preferred an application under Section
17 of the Act, 2002 and the officer
aforesaid shall verify as to whether there is
any interim order in favour of the borrower
by the Debt Recovery Tribunal or not; and
thereafter, proceed to enforce his orders.
The Senior Registrar of this Court at
Lucknow shall communicate this order to
Chief Judicial Magistrate, Lucknow for
compliance.

7. We direct Shri Raj Bux Singh,
learned Additional Chief Standing Counsel
to communicate this order to the Chief
Secretary, U.P., for circulation amongst the
District Magistrates in the State of U.P..
Likewise, a copy of this order be also sent
to the Director, Judicial Training Research
Institute, Lucknow, U.P..

8. The writ petition is disposed of in
the aforesaid terms.
----------
(2024) 11 ILRA 61
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.11.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 1000315 of 2012
With
Writ C No. 1000491 of 2012

Hindustan Aeronautics Ltd. ...Petitioner
Versus
Hindustan Aeronautics Karmchari Sabha &
Ors. ...Respondents

Counsel for the Petitioner:
P.K. Sinha

Counsel for the Respondents:
C.S.C., Avinash Pandey, Dhruv Mathur,
Pranav Agarwal, Ravindra
Kr. Yadav,
Vasundhara Mathur, Virendra Misra

A.
Labour
Law
-
Contract
Labour
(Regulation and Abolition) Act, 1970 -
Section 10(1) - Industrial Disputes Act,