^t<^_ IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) WRIT PETITION (C) N0. ^ G /20ld PETITIONER fo' n->>^K ly^'y Cent Bank Home Finance Limited Through: Authorized Officer (wrongly mention in cause title) Surya Bhawan, Juna Bilaspur, Distt. Bilaspur (C.G.) VERSUS 1. Ballu Ram Yadav, S/o Shri Chhattu Lal Yadav, R/o Village Mahmand, Spinning Mill, Lal Khadan, Distt. Bilaspur (C.G.) 2. State of Chhattisgarh Through: The Collector Bilaspur, Tah. & Distt. Bilaspur (C.G.) WRI'TPETITION UNDER ARTICLE 226/227 OF CONSTITUTION OF INDIA RESPONDENTS R' \^"^%?.. 7 ^u,~r.ttS^ /' ^a ^iH^'is^SiliiUMtWiBiiBiiBIHMfflilKaBMBS^^ ;W%'P]gTIfI(:^^Nt:?7Q^:20^t' fETni0NER Gent Beink^^ H^ ^I2inife^''''l';:;''::'\:'.:'•'.'':''; "1 •'"''•.•' VersUs Baltu^siilt^axia.Kand'another '^i-V^^St,E^S!Slia^,'KKKGM0N&S^W:^^^^^^^^^^^^^ 't>RESE^i:-,'^.;::''-;..l'-:.:;^';..^"-^. ;Siifi'Mai^ ShyMa,,^A<Iv^e^ gliri G.B.Waswant, ©c^.AJdvetcat^ :0.;R:A&,c0.1E^@®R::'::.;.3:.;.,.: ,1: • • /;:^:- .^'.-^. ;..':^^'^ l-^3a)^^::^-:^.,;::t;,,y:^ l../,:'.He%d:lGa^ed",G6^s^^Qri3^'i>SW •,-'. "2..^ ,,,.TKi3s:i,@iWil^lifi JI|ISSIIB®8||afai^ .;YSg®||©:>^|Ss||si^|fl||S©]3i||t>W|itGist]!.:{K^^ :.'^:',§ililj!gliggj%lil®?lii^:^, •^^:'4SES^f^?tffii|g^^imgWi:E.|a^Keia^^^ :l,..liiIeci^:^^(®!l^^^®|%g|Q&^alleHging^ .'by , 1;Ke^GKi^f?\J|u||j|Sat^Ma@^ ';'; petitiQn'was .(iis^oSeBw^ direGtions:-.:::'' .':'^''^^;::;':,-;Y'^^ •.l'.?.':' ; •:;.-';:;..'1''. "Th£^petifioner;slialtm<w Secfioft 14;ofitKe^^^^ regarffiig y^ affioUn^ .;L^'j:.ainourtfc;Qn'fhe-^Me^ ::^siieK'otH^'liifCT'riia^i^ .Up^tt'suGli;^pltGatioffiJll3eii]^',j;mQved,^ffl •<SeGi(l^':'ItMe;B:^pli<^i®nt:'^1or^ •^•,^pQssession,;^'e^]^:aSyB6faibIe^^^ ;:-;':;^.^'. ;.^".':^.;'-.;;'' ^:,::,^Pui-suaat'fo:/tlie^ab(^;,,®rder,;^^ ,- •Y^fresK,:appUeation;;MnQei^e||3t>^^^^tlas,|l^^ -and'::EEiforG^enf:^of.,§e'euri^.:i?]inte^ '•;—..i, w- ;« •! 1 iiSs®lfc! ^ Vne Acf) showing respondent's possession over the suit house. Thereapon, learned Chief Judicial Magistrate issued warrant of possession. The said po.ssession warrant was returned unserved with the endorsement that the suit house was possessed by one Jamvati Bhoi claiming herself to be the owner of the said house and therefore, possession could not b^obtained. Thereafter the petitioner -^r ^a,i^'-f!~^--^,-^[, applied'te ddiver plosSession with the help of police force. /\ . Having found that the petitioner has not furnished correct information regarding possession over the suit property, it appears, learned Chief Judicial Magistrate in order to ascertain as to who is in possession over the suit property issued show cause notice to Smt. Jamvati Bhoi before issuance of warrant of possession with the help of police officers. 5. Shri Anand Shukla, learned counsel appearing for the petitioner would submit, under Section 14 of the Act, the secured creditor can file an application before the Chief Metropolitan Magistrate or the District Magistrate, within whose jurisdiction the secured asset or other documents relating thereto are found for taking possession thereof. If any such request is made, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, is obliged to take possession of such asset or document and forward the same to the secured creditor. Placing reliance upon the judgment of Bombay High Court in case of M/s. Trade Well, Muinbai -v- Indian Bank reported in 2007 CRI.L.J. 2544 he argued that learned trial Court acting under Section 14 of the Act is not required to give notice eifher to the borrower or to the third party and ordinarily writ petition under Article 226 and 227 of the Constitution of India filed by such borrower or third party should not be entertained. However, in exceptional cases of gravest injustice, a writ petition could be entertained by the court and even if a writ petition is entertained, as far -~as possible, the parties should be relegated to the remedy 6, pa>" •CTSt*) •SSt^SWSf 7. 8. s@^ provided;:uhdgr.Secticm.^I;7:' (He.N^?:^t3l3gfQlffi by passing an interim order which will protecit the se©yred assets. Adjudication and final order should be left to the DRT as far as possible. Fiu-ther reliance has been placed upon the judgment of Gujrat High Court in case of Tensile Steel Ltd. and another -v- Punjdb and Sind Bank and others reported in AIR 2007 GUJARAT 126 in which leamed Single Judge of Gujarat High Court has held in para 19 of its judgment that Section 14 of the Act of 2002 is in the nature of executing the order. It does not conteniplate a notice to the borrower/guarantor or hearing the borrower/guarantor. There is no quarrel regarding the legal proposition enunciated in the above referred cases. Here in the instant case, as the person alleged to be in possession of the suit property was not found in possession and therefore, in order to ascertain whether or not the person mentioned in the unserved warrant of possession is in possession of the suit property so that the possession could be obtained under Section 14 of the Act, the show cause notice has been issued before issuance of warrant of possession with the help of police i.e. for ascertaining the proper facts and as such in the considered opinion of this Court, leamed court below has not passed any order which can be said to be contrary to the provisions of the Act and the petition in fact appears to be premature at this stage. It is well settled principle of law that fhis Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below except in such cases where perversity, illegality or jurisdictional error is writ large on the face of the record, which is not in the present case. Therefore, the petition at this stage being without substance is liable to be and is hereby dismissed. ~SS3S5^ES5ESt; 'y ^ 9. However, if any adverse order is passed by learned Chief Judicial Magistrate, then the petitioner is at liberty to avail the reraedy whatever is available under the provisions of law. Sd/- N.K. Agrawal Judge