Final Order 2

Order Details: Order below Ex-1
Pdf Text: 1 C. C. no. 1049/SA/2025
MHMM110111702025 Jana Small Finance Bank
V/s.
Mohd. Imtiyaz Ansari and Anr.
ORDER BELOW EXH. 1
This is an application filed under Section 14 of the
SARFAESI Act for taking possession of secured asset. It is averred
that due to default of the respondents - borrowers in repayment of
secured debt through installments, the loan account of the
respondents have been classified by the applicant, a secured creditor,
as non-performing asset. The respondents/borrowers have availed
loan facility of Rs. 17,23,667/- (Rs. Seventeen Lacs Twenty Three
Thousand Six Hundred Sixty Seven Only) vide sanction letter dt.
27/02/2019.
2] Exercising the powers under section 13 of the
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to as
‘the SARFAESI Act’), the applicant has initiated action for
enforcement of security interest created through mortgage in respect
of the scheduled property.
3] It is stated that the applicant has given a notice on
24/06/2023 under section 13(2) of the SARFAESI Act requiring the
borrowers - respondents to discharge in full, his liability to the tune
of Rs. 16,65,943.72/- towards the applicant within 60 days. There
has been no successful representation or lawful objection raised by
the respondents before the secured creditor within 60 days of receipt
of the notice.
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4] The applicant then proceeded to take action as
provided in section 13(4) of the SARFAESI Act for which it required
possession of the secured asset of the respondents. For this purpose
as per the provisions of section 14 of the SARFAESI Act, this
application is filed with a request to provide assistance for taking
possession of the secured asset.
5] Section 14 of the SARFAESI Act provides that where the
possession of any secured assets is required to be taken by the
secured creditor or if any of the secured asset 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.
6] The proviso of section 14 requires compliance of few
things. Those are -
i) The application shall be accompanied by an affidavit
duly affirmed by the authorized officer of the secured
creditor.
ii) The affidavit shall declare the aggregate amount
of financial assistance and the total claim of the Bank as
on the date of filing of the application.
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iii) The affidavit shall further declare that the borrower
created security interest over properties and the Bank or
financial institution is holding valid and subsisting
security interest over such property.
iv) There must be a declaration in the affidavit that claim of
the Bank or Financial Institution is within the limitation
period.
v) Details of the properties over which security interest is
created must be supplied.
vi) There must be default committed by the borrower in
repayment of the financial assistance and the account of
the borrower must be classified as a nonperforming
asset.
vii) Notice under section 13(2) of the SARFAESI Act must
have been issued and served on the borrower.
viii) The affidavit must further declare that objection
or representation in reply if any to the notice has been
duly considered and reasons for nonacceptance of such
objection or representation has been communicated to
the borrower.
ix) The borrower must have failed to make repayment of
the financial assistance inspite of the notice under
section 13(2) of the SARFAESI Act and therefore, the
bank or financial institution must be entitled to take
possession of the secured assets.
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7] I have gone through the contents of the application,
affidavit as required by the proviso to section 14 and the entire
record produced with the application. All the relevant documents,
the copies of which are filed on record are physically verified. The
original documents are returned back to the applicant. The above
referred requirements are found duly complied.
8] I am satisfied that the respondents are the borrowers of
the applicant and have created security interest in the property
mentioned in the application in favour of the applicant. I am further
satisfied that the applicant is holding valid and subsisting security
interest over the property. The claim of the applicant is within the
limitation period. The borrower is seen to have committed default in
repayment of the financial assistance and the account of the
borrower has been classified as a nonperforming asset.
9] Notice under section 13(2) of the SARFAESI Act has been
issued by the applicant and is served on the borrower. It can be seen
that even after the service of notice the borrower neither raised any
lawful objection to the notice nor has repaid the financial assistance.
Thus, the applicant is now entitled to take possession of the secured
assets.
10] As per section 14(1-A) of the SARFAESI Act, 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. The provisions in section 14(2)
further provides that the Chief Metropolitan Magistrate (CJM) or the
District Magistrate may take or cause to be taken such steps and use,
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or cause to be used, such force, as may, in his opinion, be necessary.
11] Learned advocate representing the applicant requesting
to appoint commissioner or receiver for the purpose of assisting to
take possession of the secured assets. Recently, in regards to the
appointment of Advocate as a Commissioner is upheld in the case
“NKGSB Co-operative Bank Ltd. Vs. Subir Chakravarti and others”
reported in 2022 Live Law (Supreme Court) 212. Hon'ble Supreme
Court has held that “Advocate can be appointed as a 'Commissioner'
to assist the court to implement the handing over the possession
under the said provision. Therefore, Advocate can be appointed as a
commissioner upon the fees of the same”.
12] As per the provision of section 14 of the SARFAESI Act,
2002 any subordinate officer can be appointed for the purpose of
assisting the applicant for delivery of possession of the secured asset.
The property is secured asset and is situated within the local limits of
Mumbai Municipal Corporation. The Advocate can accordingly be
appointed for the purpose of a completing the task as required by the
section 14 of the Act. In view of the above referred situation, I pass
the following order.
ORDER
1. The application is allowed.
2. Advocate Gopal Ashok Ozalwar (Mobile No. 7303076966) is
appointed as a “Court Commissioner” to take possession of the
secured assets viz. “Room No. 310, Building No. 5, in society
known as Gulmohar Co-Op Hsg. Soc. At CTS No. 90 (PT),
92(FT) and 107 (PT), MMRDA Colony, Milind Nagar, Near
Larsen and Toubro Co. Off Jogeshwari Vikhroli link Road,
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Mumbai- 400 078” as mentioned in the schedule of property,
by taking such steps and using such force including breaking
open the lock thereof or taking assistance of concerned Police
Station, if required, at the expenses of the applicant and shall
deliver possession thereof along with documents/articles, if
any, found therein to the authorized officer of the applicant
after preparing panchnama and taking inventory of the
secured asset.
3. Applicant to make payment of Rs. 15,000/- (Rupees Fifteen
Thousand only) inclusive of travelling expenses towards the
commission fee directly to the Court Commissioner within 15
days from this order.
4. On payment of Court Commissioner’s fees, writ be issued in the
name of Court Commissioner. Court Commissioner to comply
with the order and submit his/her report within 60 days from
the date of receipt of the writ.
5. Applicant to give contact details and name of authorized
person within 10 days with whom the Court Commissioner
should co-ordinate.
6. Issue writ accordingly.
7. The present SARFAESI application bearing No.1049/SA/2025
stands disposed off, being allowed.
(Smt. Anuradha A. Pandule)
Date :23.09.2026 Additional Chief Judicial Magistrate,
19th Court, Esplanade, Mumbai.
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