WP(C) 5694/2010 BEFORE THE HON’BLE MR. JUSTICE I.A. ANSARI The petitioner No.2 is a licensee of retail vend of foreign liquor, the business whereof was being run in the name and style of M/s. Eureka Wine shop. The petit ioner No.1 is a Government employee presently serving as Assistant Accounts Offi cer with the Assam Tribal Development Authority under the Department of Welfare of Plain Tribes and Backward Classes, Govt. of Assam. 2. The petitioner No. 2 applied to the respondent-bank seeking sanction of cash credit accommodation and housing loan. In course of time, the cash credit f acility and the housing loan were obtained by the petitioner No. 2. While the lo an was applied for, the petitioner No.1, being the husband of the petitioner No. 2, stood as a guarantor for the loan obtained by petitioner No.2. As the petiti oners, admittedly, defaulted in maintaining the cash credit limit and also in pa yment of the housing loan, the respondent-bank issued, on 07.01.2006, a notice u nder Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (in short, ’the Act of 2002’), c alling upon the petitioners to discharge, in full, their dues of a sum of Rs.6,8 1,188/- together with interest within 60 days from the date of the notice making it clear that in the event of failure of the petitioners to discharge, in full, the petitioners’ liabilities, the respondent-bank would, in terms of the provi sions of the Act of 2002, take necessary action for enforcing the security inter est by taking possession of, and selling, the secured assets for realizing the d ues of the respondent-bank. 3. Though the petitioners claim to have made some payments towards their de bts, they did not, admittedly, discharge, in full, their liabilities. Long after expiry of a period of 60 day, as stipulated in the notice, dated 07.01.2006, af orementioned, the respondent-bank issued another notice, on 08.08.2006, informin g the petitioners that since they had failed to discharge, in full, their liabil ities, the respondent-bank had been left with no option, but to take action by t aking possession of, and selling, the secured assets in order to realize the ban k’s dues in accordance with the Act of 2002. By the said notice, dated 08.08.200 6, the respondent-bank called upon the petitioners to hand over or surrender the possession of the secured assets to the officials and representatives of the ba nk on 01.09.2006 at 11.30 am. 4. The petitioners, even after receiving the said notice, dated 08.08.2006, failed to discharge, in full, their liabilities, and their liabilities soared t o a sum of Rs.17,61,872/-. The respondent bank, then, issued a letter, dated 17 .02.2010, to the petitioners informing them that despite repeated assurances and commitments made by the petitioners, the petitioners had not deposited the enti re outstanding dues to the respondent bank to the tune of Rs. 17,61,872/-, toget her with interest and, consequently, the respondent-bank had no option, but to t ake, in accordance with the provisions of the Act of 2002, possession of the sec ured assets mortgaged with them and realize the outstanding dues by auction sale of the properties. By the notice, dated 17.02.2010, the petitioners were furthe r informed that the respondent-bank has already applied to the Magistrate for po lice assistance in taking over possession of the secured assets. Notwithstanding the notice of auction sale, which the respondent-bank, as indicated hereinbefor e, gave to the petitioners, by their notice, dated 17.02.2010, the respondent-ba nk, once again, even under the notice, dated 17.02.2010, requested the petitione rs to make payment of their entire outstanding dues within 06.03.2010 making it, however, clear that in the event of failure of the petitioners to make payment of their outstanding dues, the petitioners shall vacate the premises and hand ov er possession thereof to the officials and representatives of the respondent-ban k, who would be present at the site, on 08.03.2010, at 11 am onwards. On the req uest so made by the respondent-bank, an order has, eventually, been passed by re spondent No.6, namely, District Magistrate, Kamrup, (Metro), Guwahati, detailing respondent No.7, an Executive Magistrate, to assist the authorized officer of t he respondent bank in securing possession of the secured assets. 5. Aggrieved by the order, dated 21.07.2010, passed by respondent No.6, nam ely, District Magistrate, Kamrup (Metro), Guwahati, the petitioners have, now, f iled this writ petition, under Article 226, seeking to get the order, dated 21.0 7.2010, set aside and quashed on the ground that the petitioners have offered ru pees two lakhs to allow them to remain in possession of the secured assets. It i s the further case of the petitioners that the respondent-bank has acted in an arbitrary manner without giving due consideration to the financial constraints, which the petitioners had been undergoing, and that since the petitioners had of fered a proposal for one-time settlement, the respondent-bank ought not to have passed the impugned order. 6. I have heard Mr. K. Bhuyan, learned counsel, for the petitioners. 7. Appearing on behalf of the petitioners, the only ground, which Mr. Bhuya n, learned counsel, has taken for challenging the notice, dated 17.02.2010, afor ementioned, and the order, dated 21.07.2010, is that the respondent-bank, withou t any order from any court, or the Debts Recovery Tribunal (in short, ’DRT’), co uld not have sought for police help and respondent No.6, who is a District Magis trate, could not have detailed an Executive Magistrate to assist the authorized officer of the respondent-bank in taking possession of the secured assets. 8. The primary question, therefore, which falls for consideration, is this: Whether, without an order from any court and/or any order from the DRT, a secur ed creditor, as defined in Section 2(zd), can take possession of the secured ass et in the event of default in making payment of the dues of the secured creditor and put the secured asset to auction sale ? Yet another question, which falls for determination, in this writ petition, is: Whether, in order to take possessi on of the secured asset, police assistance can be obtained by a secured creditor without any order from any Court or from the DRT ? 9. For the purpose of answering the questions posed above, it needs to be n oted that secured asset, as defined in Section 2(1)(zc), means the property on w hich security interest is created and secured creditor, as defined in Section 2( 1)(zd), means any bank or financial institution or any consortium or group of ba nks or financial institutions. A secured debt, according to Section 2(1)ze), mea ns a debt, which is secured by any security interest, the security interest bein g the right, tile and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation , assignment other than those specified in Section 31. 10. When a debtor defaults in making payment of the debt, how the security i nterest of a financial institution can be enforced is embodied in Section 13 of the Act of 2002. In fact, Section 13 gives a complete scheme for enforcement of security interest. 11. Section 13(1) makes it clear that notwithstanding anything contained in Section 69 or Section 69A of the Transfer of Property Act, 1882, any security in terest, created in favour of any secured creditor, may be enforced, without the intervention of a court or tribunal, by such creditor in accordance with the pro visions of the Act of 2002. Thus, Section 13(1) itself makes it abundantly clear that secured interest, created in favour of a secured creditor, may be enforced by the secured creditor without intervention of a Court or Tribunal. How secure d creditor can enforce security interest stand, as indicated, embodied in Sectio n 13 of the Act of 2002. 12. Section 13(2) of the Act of 2002 lays down that where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or the installment thereof, and his accoun t, in respect of such debt, is classified by the secured creditor as non-perform ing asset, then, the secured creditor may require the borrower, by notice, in wr iting, to discharge, in full, his liabilities to the secured creditor within six ty days from the date of notice failing which the secured creditor shall be enti tled to exercise all or any of the rights under sub-section (4) of Section 13 of the Act of 2002. 13. In the case at hand, on the default of the petitioners to make payment o f the respondent-bank’s dues, a notice was duly issued by the respondent-bank, o n 07.01.2006, demanding payment, in full, of their dues. This demand, which was raised by the letter, dated 07.01.2006, was, in fact, a demand notice under Sect ion 13(2). In terms of Section 13(2), secured creditor is entitled to demand fro m the borrower to discharge, in full, the borrower’s liability to the secured cr editor within a period of sixty days. As the petitioners failed to discharge the ir liabilities, in full, pursuant to the notice, issued under Section 13(2), the respondent-bank took recourse to Section 13(4), which leaves 4 (four) courses o pen to a secured creditor for enforcing discharge of the liabilities of the borr ower, one of such courses being, as indicated by Section 13(4)(a), to take posse ssion of the secured assets of the borrower including the right to transfer the secured asset by way of lease, assignment or sale for realizing the security in terest. The notice, dated 08.08.2006, was, thus, a notice under Section 13(4). C lause (a) of Section 13(4) makes it very clear that secured creditor may not onl y take possession of the secured asset of the borrower, but the secured creditor will also have the right to sell the secured asset for realizing the security i nterest of the secured creditor. 14. Close on the heels of Section 13, as discussed above, Section 14(1) clea rly lays down that where the possession of any secured asset is required to be t aken by the secured creditor or if any of the secured asset is required to be so ld or transferred by the secured creditor under the provisions of the Act of 200 2, 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, within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession th ereof, and the Chief Metropolitan Magistrate or, as the case may be, the Distric t Magistrate, on such request being made to him - (a) take possession of such se cured asset and documents relating thereto; and (b) forward such assets and docu ments to the secured creditor. 15. The request, which the respondent-bank, in the present case, had made, b y their letter, dated 17.02.2010, to the District Magistrate to give them police assistance in obtaining possession of the secured asset was in exercise of thei r right under Section 14. Section 14(2) lays down that for the purpose of securi ng compliance with the provisions of sub-section (1), the Chief Metropolitan Mag istrate or the District Magistrate, as the case may be, may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinio n, be necessary. The order, which was passed by respondent No.6, namely, Distri ct Magistrate, on 21.07.2010, is, in fact, in exercise of the District Magistrat e’s power under Section 14(2). 16. There is nothing in the Act of 2002 or any of the provisions, contained therein, indicating that for the purpose of taking over possession of the secure d asset, the secured creditor cannot seek police assistance from the District Ma gistrate without obtaining an order from a Court or from the DRT. Far from this, Section 14 makes it clear that in order to obtain possession or control of any secured asset, a secured creditor may request, in writing, the Chief Metropolita n Magistrate or the District Magistrate, within whose jurisdiction any such secu red asset or other documents, relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or the District Magis trate, as the case may be, on such request being made to him, may (a) take posse ssion of such asset and documents relating thereto; and (b) forward such assets and documents to the secured creditor. In the facts and attending circumstances of the present case, the District Magistrate was within the ambit of his powers, when he passed the impugned order, dated 21.02.2010, detailing an Executive Mag istrate (i.e., respondent No.7) to provide police assistance to secure creditor, i.e., the respondent-bank. 17. Because of what have been discussed and pointed out above, this Court do es not find that the notices, given by the respondent-bank and/or the directions given by the respondent No.6 and/or the police assistance sought for by the res pondent-bank and/or the police assistance sought to be provided by the District Magistrate, by detailing an Executive Magistrate for this purpose, is without ju risdiction or contrary to law. Situated thus, it becomes clear that the present writ petition is wholly without merit. 18. In the result and for the reasons discussed above, this writ petition fa ils, the same is not admitted and shall accordingly stand dismissed. 19. No order as to costs.