2021 (3) TMI 1462 - HC - Indian Laws

Writ petition dismissed for challenging DRT order non-compliance under SARFAESI Act Section 13(4) and 17(1)

The HC dismissed a writ petition challenging non-compliance of a DRT order for restoration of possession of mortgaged property taken under SARFAESI Act. ... Possession of mortgaged property taken forcefully under SARFAESI Act - Non-compliance of DRT order for restoration of possession - HELD THAT:- Even for the purposes of enforcement of an order dated 18.02.2021, where the direction was simultaneously issued by the DRT to the petitioners to deposit Rs. 4.00 lakh and also direction was issued that the possession of one room would be handed over to the petitioner, would fall to be a measure, which is contemplated under sub Section (4) of Section 13 of the SARFAESI Act, 2002, which constitutes to be the part of the actions, which has been taken under sub Section (1) of Section 17 of the SARFAESI Act, 2002. The petitioners’ remedy for an expeditious disposal and for compliance of the order dated 18.02.2021, since falls to be within the ambit of sub Section (4) of Section 13, which is inclusive under the provisions contained under sub Section (1) of Section 17, the remedy available to the petitioners would be under sub Section (6) of Section 17 of the SARFAESI Act, 2002. This writ petition is dismissed as not maintainable, with the liberty open to the petitioners to approach the Appellate Forum, as provided to the petitioners under sub Section (6) of Section 17 of the SARFAESI Act, 2002. Issues:1. Grievance regarding possession of mortgaged property taken forcefully under SARFAESI Act.2. Non-compliance of DRT order for restoration of possession.3. Maintainability of writ petition for mandamus under SARFAESI Act.Analysis:1. The petitioners raised a grievance in the writ petition regarding the possession of the mortgaged property being taken forcefully under Section 13 of the SARFAESI Act. The petitioner alleged that possession was taken when he was not present, and his family members were forcefully dispossessed. The petitioner had initiated proceedings before the DRT, seeking urgent hearing and restoration of possession. The DRT had directed the petitioner to deposit a sum of Rs. 4.00 lakh for restoration of possession of one room temporarily.2. The petitioners contended that despite depositing the required amount, the possession of the room as directed by the DRT had not been restored. The petitioners sought relief in the writ petition, including mandamus to the respondent to comply with the DRT's order and expedite the decision on SA No. 16 of 2021. The petitioner also filed an application alleging contempt of the DRT's order.3. The respondent raised an objection to the maintainability of the writ petition for mandamus under the SARFAESI Act, citing Section 17(6) of the Act. The respondent argued that if the DRT does not decide the matter within four months, the remedy available is to approach the Appellate Tribunal for expeditious disposal. The petitioner argued that the embargo of Section 17(6) would not apply as the enforcement sought was related to an interim order for possession restoration, not a measure under Section 13(4) of the Act.4. The court held that the petitioner's remedy for compliance with the DRT's order fell within the ambit of Section 13(4) and Section 17(1) of the SARFAESI Act. Therefore, the writ petition was dismissed as not maintainable, with the liberty granted to the petitioners to approach the Appellate Tribunal as provided under Section 17(6) of the Act.