THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. THE CENTRAL BANK OF INDIA A GOVT. OWNED BANK HAVING ITS REGISTERED
Case at a glance
Provisions considered
Judgment
Advocate for the Petitioner : MR. A SARMA, MR. K KALITA,S CHOUDHURY Advocate for the Respondent : GA, ASSAM, Mukesh Sharma, MS F RAHMAN,MR. M SHARMA,MS N DEVI HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY BEFORE ORDER 19-03-2025
Heard Mr. W. Rahman, learned counsel for the petitioners.
Alleging the arbitrary action of the respondent Bank in attaching inherited immovable property of the petitioners under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act, 2002) on the ground that the same was mortgaged against a loan obtained by M/s Matri Bhander, the present writ petition has been filed, inter alia, contending that the petitioners’ property was never mortgaged to secure any loan amount. On the contrary, the security of the loan is some other properties, against which the respondent Bank is reluctant to proceed.
The respondent Bank has filed an affidavit and a copy of the notice issued under Section 13 (2) of the SARFAESI Act, 2002 is also annexed to this petition as Annexure-6. The said notice was addressed to Hanif Ali , son of late Abdul Rahman and the petitioner No.1 is Sorhab Ali, son of late Abdul Rahman.
The aforesaid notice indicates an equitable mortgage of all that part and parcel of land and building in the name of Mr. Hanif Ali and Md. Janif Ali under Page No.# 3/4 Dag No. 2 , K.P. Patta No. 86, measuring 2 bighas situated at Vill-Bhutpukhuri, Mouza-Pachim Sialmari, District-Darrang bounded by North-Kasem Ali, East- own land, South-Nagar Ali, West-Road.
It is the contention of the petitioners that the petitioners’ land is not under the aforesaid Dag and Patta, rather the lands belonging to the petitioners are described at Annexure-8 to this petition, i.e., measuring 19 Bighas, 14 Lechas under Myadi Patta Nos. 165 & 86 and under Dag Nos. 24, 25, 42 & 50 situated at Vill-Bhetpukhuri, Mouza-Siyalmari.
Learned counsel for the respondent Bank submits that the Bank cannot take any action against the land described at Annexure-8 and will not take any possession beyond the land described in the notice issued under 13(2) of the SARFAESI Act, 2002 belonging to Hanif Ali & Janif Ali inasmuch as admittedly, the petitioners are not the owner of aforesaid land.
Mr. Sarma, learned counsel for the petitioners contends that even otherwise, the petitioners are having alternative remedy under Section 17 of the SARFAESI Act, 2002.
This Court has considered the matter and is of the view that the land of the petitioners is not covered under the schedule of land, which is mortgaged and as described in the notice issued under Section 13 (2) of the SARFAESI Act, 2002. If that be so, the bank will have no jurisdiction to take action under SARFAESI Act, 2002 in so far as the same relates to the land covered under Dag Nos. 20,25,42 & 50 under Myadi Patta Nos. 165 & 86 situated at Vill- Bhetpukhuri, Mouza-Siyalmari.
With the aforesaid observation, this writ petition stands closed. However, it is made clear that the Bank while taking possession of the land as mortgage under Section 13 (2) of the SARFAESI Act, 2002, may get the land of the petitioners’ demarcated through the concerned Circle Officer under Section 14 of the SARFAESI Act, 2002. Page No.# 4/4 JUDGE Comparing Assistant
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
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