HIGH COURT OF CHHATTISGA‘RH AT BILASPUR ‘B HON’BLE SHRI DHIRENDRA MISHRA, & HON'BLE SHRI R N CHANDRAKAR JJ‘ Shrl Anand Shukla counsel for the appellant Shn Sumesh Bajaj, Govt Advocate for the State. ORAL JUDGMENT r (7m February, 20’1 1) er Dhrrendra Mrshra, By this appeal the appellant has Impugned the order of the learned Single Judge of Annexure AI1, whereby the petitioners wrrt pehtlon under r Article 226/227 of the Constitution of India against the order dated 6 8 2010 (Annexure P/1) of the Chief JudlCIal Magistrate Bllaspur has been dismissed 2. 3 Briefly stated facts of the case are that the petrtroner bank after lssurn' notrce under Sectron 13(2) of the Secuntrzatron and Reconstructron of Flnancral Assets and Enforcement of Security Interest Act 2002 (In short “the Act") to respondent No.1 on his failure to repay the advance loan, proceeded under Section 13 of the Act against the secured assets. Thereafter, an. application (Annexure PIE) under Section 14 of the Act was tiled before the . ' ' Chief Judmlal Magistrate Brlaspur requesting for taking appropriate necessary action for possession of the secured asset Learned CJM directed Issuance of possessron warrant vlde hts order dated15 4 2010 However the warrant was returned unserved 'with a note that in the suit house one Srnt Jammati Bhoi Was in possession who raised a dispute stating that the k ‘ property in question is recorded in her name Thereafter leamed CJM a; , directed issuance of notice to the present owner Smt Jammati Bhoi calling ' upon her to show cause as to why possessmn of the property should not be taken over from her and handed over to the petitioner The petitroner’s wnt D P Writ-Appeal No- 39 éf 2011 Appellant : Cent Bank Home' Finance Lumxted Through 5’ (Retitioner) Authorized Officer (wrongly memon m cause we; Surya Bhawan Juna Bllaspur Distt Bilaspur (CG) ' Versus Rg§p9ndents 1. Ballu Ram Yadav S/o Shn Chhattu La! Yadav R/o Village Mahmand Spinning Mill Lal Khadan Dlstt .Bllaspur (CG) j 2. State of Chhattlsgarh Through The Collector Bulaspur Tah & Distt Bilaspur(CG) Present @ pétition against the ab9ve. order has been Ither' dismissed by the ieamed Single Judge by the impugned order. 3; Leamed counsel for the appeilant submits that the CJM was obliged to take possession of the asset and forward the same to the secured creditor as per provrsrons of Section 14 of the Act and i was not required to give notice either to the borrower or to the third party aeiylng upon the decision of the Supreme Court in the matters of United Bank of Indra Vs Satyawat: Tendon and others it was argued that the CJM or the District Magistrate ts only to assrst the secured creditor in taking possessron of the secured asset They cannot adjudrcate any claim of the borrower or any third party found in possessmn of the secured asset The remedy available to the third party or any borrower is by way of appeal under Section 17 of the‘Act. ; Further placing reliance o'n the judgment of the Gujarat High Court in the icase of Tensile Steel Ltd. and another Vs. Punjab and Sind Bank} and others? and Ill/s Trade Well, Mumbai Vs. Indian Sanka, it was argued? thatthe forum considering the application under Section 14 of the Act is not required to give notice either to the borrower or to the third patty. 4. : Heard learned counsel forgthe' appetlant and perused the impugned order. i i 5. ; Learned Single Judge alter con5idenng the aforesaid arguments of learned counsel for the petitioner obsewed that in the instant case smce the person alleged to be in possession of the suit property was not found in possession therefore in order to ascertain whether or not the person g mentioned in the unserved warrant of possession is in possession of the smt property, so that possession could be obtained under Section 14 of the Act; the Eshow cause notice has been issued before issuance of warrant of possessiOn with the help of police for ascertaining the proper facts ln these : circumstances srnce the Court below has not passed any order which can: be said to be contrary to the proVisions of the Act the petition appears to be premature at this stage and accordingly, the leamed Single Judge dismissed ’ the petition 6. 1' After carefully examining the impugned order and the judgments cited by learned couhsel for the appellant. we are of the opinion that the above \ ; ~ t (2010) 8 scc 110 MR2007GuJamt 126 ’2007CnLJ 2544 " ‘ referred finding oft'he learned Single Judge i strictly in aecprdanoe with law and the writ petition was premature. The judgments cited by the appellant are istinguishable on facts as inthe instant case the CJM has only issued show cause notice to the person found in possession to ascertain the fact and has not passed any order on the application under Section 14 of the Act We find no reason to Interfere with the order of the learned Single Judge The appeal! Is Without any substance the same desenfes to be and is accordingiy dismissed at the admission stage itself / Sdl- , Dhre i I indra Mishl'a ud d d ” Jge