Bombay High Court · 2026

Judgmentapl1523.252Nr.Sai Mandir, Katol Road,Nagpur - 440 030.4. Shri Purshottam Mohanlal Tapdiya,aged about 60 years, occupation : business,r/o Gajanan Nagar, Hanuman Mandir,Akot, district Akola. ….. Non-applicants.================================Shri S.M.Pande, Counsel for Applicants.Shri A.M.Kadukar, APP for the NA No.1/State.Shri Karan Sachdev, Counsel for NA No.2.Shri D.A.Sonwane, Counsel for NA No.3.Ms Sunita Paul, Counsel for NA No.4================================CORAM : URMILA JOSHI-PHALKE, J.RESERVED ON : 26/02/2026PRONOUNCED ON : 04/03/2026JUDGMENT1. Heard learned counsel appearing for respective parties.Admit. Heard finally by consent.2. The present application is preferred by applicants forquashing and setting aside the impugned order dated26.9.2025 passed below Exh.5 in Criminal RevisionNo.113/2025 passed by learned Additional Sessions Judge,Akola and order dated 30.8.2025 passed by learned.....3/- Judgmentapl1523.253Additional Chief Judicial Magistrate, Akola in Criminal CaseNo.326/2025.3. The applicants are proprietary concern and doing itsbusiness at Akola. Non-applicant No.2 is a financialinstitution (the bank). The applicants have obtained financialassistance from the bank in the nature of Term Loan-1 ofRs.14,28,521.60; Term Loan-2 of Rs.56,45,974.25; CECLS-1of Rs.25,00,000/-; CECLS-3 of Rs.52,50,000/-, and OCC ofRs.7,50,00,000/-. Against the said loans, towards security forrepayments of these loans equitable mortgage in 4 immovableproperties was executed in favour of the bank. Threeproperties, which are subject-matter of the instantproceedings, include one residential plot at Akola and oneproperty which includes three plots at Akot and one industrialplot with constructed factory at Akot. Whereas, fourthproperty is located at Nagpur. The bank has subsequentlysanctioned ad-hoc cash credit limit of Rs.1,30,00,000/- to theapplicants on 31.5.2024. As the applicants failed to repay the.....4/- Judgmentapl1523.254said loan amounts, it was classified as “Non PerformingAssets” (NPA) and the bank has issued a Demand Notice inview of Section 13(2) of The Securitisation andReconstruction of Financial Assets and Enforcement ofSecurity Interest Act, 2002 (the SARFAESI Act). 4. The applicants on 23.1.2025, in response to the noticedated 26.11.2024 made representation as per Section 13(3-A)of the SARFAESI Act. On 31.1.2025, the bank rejectedrepresentation made by applicants and on 11.2.2025preferred an application under Section 14 of the SARFAESIAct before learned Additional Chief Judicial Magistrate atAkola for taking possession of the properties at Akot videCriminal Case No.326/2025. Learned Chief JudicialMagistrate allowed the application and appointed AdvocateShri Mohd.Zaheeruddin Kabiruddin as Court Commissioner totake possession of the secured assets mentioned in theapplication by directing that the Court Commissioner to takesuch steps and use such force including breaking open the.....5/- Judgmentapl1523.255lock or any hurdle thereof by taking assistance of police ifrequired at the expenses of the applicants and if anyarticles/documents found in the secured asset, deliver itspossession to the authorized officer of the applicants afterpreparing panchanama and taking inventory. It was furtherdirected to the bank to pay amount of Rs.10,000/- as fees tothe Court Commissioner and directed the CourtCommissioner to submit a report regarding taking anddelivering possession of the secured assets to the authorizedofficer of the bank. 5. Being aggrieved and dissatisfied with the same,applicants preferred a revision bearing Criminal RevisionNo.113/2025 which came to be dismissed on 26.9.2025 andhence, the present application.6. Learned counsel for applicants submitted that learnedAdditional Chief Judicial Magistrate at Akola was incompetentin view of unambiguous language of Section 14 of the.....6/- Judgmentapl1523.256SARFAESI Act and Section 10 of the BNSS 2023 whichsubstituted CrPC 1974 containing pari materia provisions. Itis submitted that Section 10 of the BNSS and Section 12 ofthe CrPC empower the High Court to appoint JudicialMagistrate First Class to the Chief Judicial Magistrate andAdditional Chief Judicial Magistrate. However, sub-clause (2)of those Sections specifically stipulates that Additional ChiefJudicial Magistrate shall have all or any of the powers of aChief Judicial Magistrate under this Sanhita or the CrPC orunder any other law for the time being in force as the HighCourt may direct. He submitted that the Additional ChiefJudicial Magistrate thus gets only such powers of the ChiefJudicial Magistrate as the High Court may direct that as amatter of fact the High court issued two Notifications dated27.12.2010 and 26.10.2016 under Section 12(2) of the Codeand appointed Joint CJSD in Judicial Districts and TalukaPlaces as Additional Chief Judicial Magistrate. However, thereis no direction about confer of powers of the Chief Judicial.....7/- Judgmentapl1523.257Magistrate on Additional Chief Judicial Magistrate in thoseNotifications. Thus, these Notifications are not covered underSection 10(2) of the BNSS till this date and, therefore, theorder passed by learned Additional Chief Judicial Magistrateis without jurisdiction and, therefore, it vitiates the entireproceeding. It is submitted by him that learned AdditionalSessions Judge, Akola has not considered this aspect andcommitted a serious error in rejecting the application forgrant of stay by ignoring mandatory provisions contained inSection 10 of the BNSS 2023. He submitted that the mainrevision filed by the applicants is still pending before learnedAdditional Sessions Judge. He further submitted that thisapplication is maintainable under Section 482 of the CrPC inview of inherent powers given to this court and prayed forquashing and setting aside the order passed by learnedAdditional Chief Judicial Magistrate as well as learnedAdditional Sessions Judge......8/- Judgmentapl1523.2587. Learned counsel for applicants placed reliance onfollowing decisions:1. Capital First Ltd., Mumbai vs. State ofMaharashtra and anr, reported in AIR 2018Bombay 76;2. Standard Chartered Bank and ors vs. V.NobleKumar and ors, reported in ALL SCR 3025;3. Ramchandra keshav Adke (dead) by Lrs vs.Govind Joti Chavare and ors, reported in 1975AIR (SC) 915; and4. M/s.R.D.Jain and Co. vs. Capital First Ltd.,reported in AIR 2022 SC 4820.8. The application is strongly opposed by the bank on theground that the instant application as framed and filed itselfis not maintainable. There is no dispute that the bank hasinitiated the proceeding under the provisions of the SARFAESIAct against borrower. There is no dispute that the cash creditfacility as well as the loan facilities are availed by applicants.Till date, amount Rs.9,87,73,574/- is due against theapplicants. There is no dispute that the loan account was.....9/- Judgmentapl1523.259classified as NPA and the Demand Notice under Section 13(2)of the SARFAESI Act is already given to the applicants. Beinghis representation was not satisfactory one, it was rejectedand application under Section 14 of the SARFAESI Act wasfiled. He submitted that learned Additional Chief JudicialMagistrate gets all powers which the Chief Judicial Magistrateis having. The Chief Judicial Magistrate is superior only forthe administrative purpose and as far as judicial powers isconcerned, Additional Chief Judicial Magistrate is notsubordinate to the Chief Judicial Magistrate. He submittedthat the application itself is not maintainable and, therefore, itdeserves to rejected.9. Learned counsel for the bank has placed reliance onfollowing decisions:1. M/s.Phoenix Arc Private Limited vs. V.GaneshMurthy and anr, reported in 2023(3) PLR 329;2. Sarojben d/o Raghuvir Yadav vs. State of Gujaratand ors, reported in Law Finder doc ID 1382606;.....10/- Judgmentapl1523.25103. Kanaiyalal Lalchand Sachdev and ors vs. State ofMaharashtra and ors, reported in (2011)2 SCR 602,and4. M/s.R.D.Jain and Co. vs. Capital First Ltd., reportedin AIR 2022 SC 4820.10. I have given considerable thought to the submissionsmade by learned counsel for applicants and learned counselfor the bank and gone through the records carefully.11. Before entering into the merits of the case, it isnecessary to refer relevant provisions. Section 12 of the CrPC deals with Chief JudicialMagistrate and Additional Chief Judicial Magistrate, etc. Thesaid Section is reproduced below for reference as under:“12. Chief Judicial Magistrate and Additional ChiefJudicial Magistrate, etc.(1) In every district (not being a metropolitan area),the High Court shall appoint a Judicial Magistrate ofthe first class to the Chief Judicial Magistrate.(2) The High Court may appoint any JudicialMagistrate of the first class to be an Additional Chief.....11/- Judgmentapl1523.2511Judicial Magistrate, and such Magistrate shall have allor any of the powers of a Chief Judicial Magistrateunder this Code or under any other law for the timebeing in force as the High Court may direct.(3) -(a) The High Court may designate any JudicialMagistrate of the first class in any sub-division as theSub-divisional Judicial Magistrate and relieve him ofthe responsibilities specified in this section as occasionrequires.(b) Subject to the general control of the Chief JudicialMagistrate, every Sub-divisional Judicial Magistrateshall also have and exercise, such powers ofsupervision and control over the work of the JudicialMagistrates (other than Additional Chief JudicialMagistrates) in the sub-division as the High Court may,by general or special order, specify in this behalf.”12. The pari materia provisions are in newly Amended Acti.e. Section 10 of the BNSS 2023. The said Section isreproduced below for reference as under:“10. (1) In every district, the High Court shall appointa Judicial Magistrate of the first class to be the ChiefJudicial Magistrate......12/- Judgmentapl1523.2512(2) The High Court may appoint any JudicialMagistrate of the first class to be an Additional ChiefJudicial Magistrate, and such Magistrate shall have allor any of the powers of a Chief Judicial Magistrateunder this Sanhita or under any other law for the timebeing in force as the High Court may direct.(3) The High Court may designate any JudicialMagistrate of the first class in any sub-division as theSub-divisional Judicial Magistrate and relieve him ofthe responsibilities specified in this section as occasionrequires.(4) Subject to the general control of the Chief JudicialMagistrate, every Sub-divisional Judicial Magistrateshall also have and exercise, such powers ofsupervision and control over the work of the JudicialMagistrates (other than Additional Chief JudicialMagistrates) in the sub-division as the High Court may,by general or special order, specify in this behalf.”13. Issue raised by applicants is that the Additional ChiefJudicial Magistrate is incompetent to deal with applicationfiled under Section 14 of the SARFAESI Act as theNotification issued by this High Court not confers powers onhim of the Chief Judicial Magistrate......13/- Judgmentapl1523.251314. The Notification issued by the High Court isreproduced as under:“(For insertion in the Maharashtra Government Gazette, Part-1, CentralSection)NOTIFICATION BY THE HIGH COURT OFJUDICATURE APPELLATE SIDE AT BOMBAY.NO.A-3902/2016Dated: 26 October 2016By virtue of powers conferred under section 12(2) ofthe Code of Criminal Procedure, 1973 the High Courthereby appoints Joint Civil Judges, Senior Divisionand Judicial Magistrate, First Class working at theTaluka Places in the Judicial District as AdditionalChief Judicial Magistrate.Hereinafter the Joint Civil Judges, Senior Division andJudicial Magistrate, First Class posted at the TalukaPlaces in the Judicial District shall carry designation asJoint Civil Judge, Senior Division and Additional ChiefJudicial Magistrate.This Notification shall come into force with immediateeffect.High Court, Bombay ) S/dDate 26 October, 2016 ) (Mangesh S.Patil) Registrar General”.....14/- Judgmentapl1523.251415. Section 15 of the CrPC deals with subordination ofJudicial Magistrate, which states that every Chief JudicialMagistrate shall be subordinate to the Sessions Judge andevery other Judicial Magistrate shall, subject to the generalcontrol of the Sessions Judge, be subordinate to the ChiefJudicial Magistrate.16. Section 17 of the CrPC deals with Chief MetropolitanMagistrate and Additional Chief Metropolitan Magistrate,which reads as (1) the High Court shall, in relation to everymetropolitan area within its local jurisdiction, appoint aMetropolitan Magistrate to be the Chief MetropolitanMagistrate for such metropolitan area, and (2) the High Courtmay appoint any Metropolitan Magistrate to be an AdditionalChief Metropolitan Magistrate, and such Magistrate shall haveall or any of the powers of a Chief Metropolitan Magistrateunder this Code or under any other law for the time being inforce as the High Court may direct......15/- Judgmentapl1523.251517. Before proceeding further, it is also necessary to referthe powers to be exercised by the Additional Chief JudicialMagistrate.18. It is pertinent to mention here that Section 10(2) ofthe BNSS and old Section 12(2) of the CrPC provide that theHigh Court may appoint any Judicial Magistrate of the FirstClass to be an Additional Chief Judicial Magistrate, and assuch Magistrate shall have all or any of the powers of a ChiefJudicial Magistrate under this Sanhita or under any other lawfor the time being in force as the High Court may direct.19. Thus, in this regard, the High Court in itsadministrative side is required to pass an order under Section10(2) of the BNSS 2023 as to the extent of powers of theAdditional Chief Judicial Magistrate.20. Section 13(2) of the BNSS 2023 also makes it clearthat the Chief Judicial Magistrate has been authorized as to.....16/- Judgmentapl1523.2516the distribution of business among the judicial Magistratesubordinate to him. 21. Thus, the Legislature though has not conferred thispower on the Additional Chief Judicial Magistrate, the ChiefJudicial Magistrate has made empowered as to thedistribution of business.22. Thus, it is pertinent to note that the subordination ofthe Additional Chief Judicial Magistrate is only in regard toadministrative functions. In regard to the judicial functions,Section 10(2) of the BNSS 2023 specifically provides that theAddition Chief Judicial Magistrate shall have all the powers ofthe Chief Judicial Magistrate.23. This aspect is considered by the Hon’ble Apex Court inthe case of M/s.R.D.Jain and Co. supra, relied upon bylearned counsel for the applicant and learned counsel for thebank, wherein it is held that the judicial powers and thepowers, under the CrPC which may be exercised by the Chief.....17/- Judgmentapl1523.2517Metropolitan Magistrate, can be exercised by the AdditionalChief Metropolitan Magistrate. It is pertinent to note that it was further inter alia heldthat the Additional Chief Metropolitan Magistrate can be saidto be at par with the Chief Metropolitan Magistrate in so faras the powers to be exercised under the CrPC are concerned. The Hon’ble Apex Court further stated that the ChiefMetropolitan Magistrate in addition, may have administrativepowers. However, for all other purposes and more particularlythe powers to be exercised under the CrPC both are at par.Therefore, the Additional Chief Metropolitan Magistratecannot be said to be subordinate to the Chief Metropolitanmagistrate insofar as the exercise of judicial powers areconcerned.24. Thus, it is no more res integra that as far as judicialpowers are concerned, the Additional Chief Judicial.....18/- Judgmentapl1523.2518Magistrate is not subordinate to the Chief MetropolitanMagistrate.25. In relation to the administrative functions to beexercised by the Chief Judicial Magistrate under the BNSS,2023, the same can be exercised by the Additional ChiefJudicial Magistrate only to the extent, an order to this effect ispassed by the High Court. In this regard reference may againbe made to Section 10(2) of the BNSS, 2023 which inter aliaprovides that an Additional Chief Judicial Magistrate "shallhave all or any of the powers of a Chief Judicial Magistrate","as the High Court may direct". Therefore, an order of theHigh Court in its administrative side is required to be passedregarding "all or any of the powers" to be exercised by theAdditional Chief Judicial Magistrate.26. The Notification issued by the High Court in thepresent case specifically shows that “by virtue of powersconferred under Section 12(2) of the Code of Criminal.....19/- Judgmentapl1523.2519Procedure, 1973 the High Court hereby appoints Joint CivilJudges, Senior Division and Judicial Magistrate, First Classworking at the Taluka Places in the Judicial District asAdditional Chief Judicial Magistrate.27. Thus, the powers of the Chief Judicial Magistrate arealready conferred on the Additional Chief Judicial Magistrate.28. Thus, the contention of learned counsel for theapplicants that the Additional Chief Judicial Magistrate isincompetent to deal with the application filed under Section14 of the SARFAESI Act is not sustainable.29. The provisions of Section 13 of he SARFAESI Actenable the secured creditors, such as banks and financialinstitutions, not only to take possession of the secured assetsof the borrower but also to take over the management of thebusiness of the borrower, including the right to transfer byway of lease, assignment or sale for realizing secured assets,subject to the conditions indicated in the two provisos to.....20/- Judgmentapl1523.2520clause (b) of sub-section (4) of Section 13. In order toprevent misuse of such wide powers and to prevent prejudicebeing caused to a borrower on account of an error on the partof the banks or financial institutions, certain checks andbalances have been introduced in Section 17 which allow anyperson, including the borrower, aggrieved by any of themeasures referred to in sub-section (4) of Section 13 taken bythe secured creditor, to make an application to the DRThaving jurisdiction in the matter within 45 days from the dateof such measures having taken for the reliefs indicated in sub-section (3) thereof.30. The intention of the legislature is, therefore, clear thatwhile the banks and financial institutions have been vestedwith stringent powers for the recovery of their dues,safeguards have also been provided for rectifying any error orwrongful use of such powers by vesting the DRT withauthority after conducting an adjudication into the matter todeclare any such action invalid and also to restore possession.....21/- Judgmentapl1523.2521even though possession may have been made over to thetransferee.31. Therefore, it is apparent that the remedy of theapplicants was before the Debt Recovery Tribunal under theSARFAESI Act and not before this Court. 32. It is submitted by learned counsel for the applicantsthat in view of Section 14 of the SARFAESI Act only the ChiefMetropolitan Magistrate or the District Magistrate withinwhose jurisdiction may such secured assets or otherdocuments relating thereto may be situated or found to takepossession thereof and the Chief Metropolitan Magistrate orthe District Magistrate shall on such request being made tohim take possession of such assets and documents relatingthereto and forward such assets to the secured creditor,provided that any application by the secured creditor shall beaccompanied by an affidavit duly affirmed by the authorizedofficer of the secured creditor......22/- Judgmentapl1523.252233. For the purpose of reference, Section 14 of theSARFAESI Act is reproduced as under:“14. Chief Metropolitan Magistrate or DistrictMagistrate to assist secured creditor in takingpossession of secured asset. (1) Where the possession of any secured asset isrequired to be taken by the secured creditor or ifany of the secured asset is required to be sold ortransferred by the secured creditor under theprovisions of this Act, the secured creditor may, forthe purpose of taking possession or control of anysuch secured asset, request, in writing, the ChiefMetropolitan Magistrate or the District Magistratewithin whose jurisdiction any such secured asset orother documents relating thereto may be situated orfound, to take possession thereof, and the ChiefMetropolitan Magistrate or, as the case may be, theDistrict Magistrate shall, on such request beingmade to him(a) take possession of such asset and documentsrelating thereto; and (b) forward such asset and documents to thesecured creditor.[Provided that any application bythe secured creditor shall be accompanied by anaffidavit duly affirmed by the authorized officerof the secured creditor, declaring that-.....23/- Judgmentapl1523.2523(i) the aggregate amount of financialassistance granted and the total claim of theBank as on the date of filing the application;(ii) the borrower has created securityinterest over various properties and that theBank or Financial Institution is holding avalid and subsisting security interest oversuch properties and the claim of the Bank orFinancial Institution is within the limitationperiod;(iii) the borrower has created securityinterest over various properties giving thedetails of properties referred to in sub-clause(ii) above.(iv) the borrower has committed default inrepayment of the financial assistance grantedaggregating the specified amount;(v) consequent upon such default inrepayment of the financial assistance theaccount of the borrower has been classifiedas a nonperforming asset;(vi) affirming that the period of sixty daysnotice as required by the provisions of sub-section (2) of section 13, demanding.....24/- Judgmentapl1523.2524payment of the defaulted financial assistancehas been served on the borrower;(vii) the objection or representation in replyto the notice received from the borrower hasbeen considered by the secured creditor andreasons for non-acceptance of such objectionor representation had been communicated tothe borrower;(viii) the borrower has not made anyrepayment of the financial assistance in spiteof the above notice and the AuthorizedOfficer is, therefore, entitled to takepossession of the secl1red assets under theprovisions of sub-section (4) of section 13read with section 14 of the principal Act;(ix) that the provisions of this Act and therules made thereunder had been compliedwith:Provided further that on receipt of the affidavit fromthe Authorized Officer, the District Magistrate or theChief Metropolitan Magistrate, as the case may be,shall after satisfying the contents of the affidavitpass suitable orders for the purpose of takingpossession of the secured assets [within a period ofthirty days from the date of application] [Insertedby Act No. 1 of 2013]:-.....25/- Judgmentapl1523.2525Provided also that the requirement of filing affidavitstated in the first proviso shall not apply toproceeding pending before any District Magistrateor the Chief Metropolitan Magistrate, as the casemay be, on the date of commencement of thisAct.] [Substituted by Act No. 44 of 2016.][Provided further that if no order is passed by theChief Metropolitan Magistrate or District Magistratewithin the said period of thirty days for reasonsbeyond his control, he may, after recording reasonsin writing for the same, pass the order within suchfurther period but not exceeding in aggregate sixtydays.] [Inserted by Act No. 44 of 2016.](1A) (The District Magistrate or the ChiefMetropolitan Magistrate may authorize any officersubordinate to him,-(i) to take possession of such assets and documentsrelating thereto; and(ii) to forward such assets and documents to thesecured creditor.](2) For the purpose of securing compliance with theprovisions of sub-section (1), the Chief MetropolitanMagistrate or the District Magistrate may take orcause to be taken such steps and use, or cause to beused, such force, as may, in his opinion, benecessary......26/- Judgmentapl1523.2526(3) No act of the Chief Metropolitan Magistrate orthe District Magistrate [any officer authorized bythe Chief Metropolitan Magistrate or DistrictMagistrate] [Inserted by Act No. 1 of 2013] done inpursuance of this section shall be called in questionin any Court or before any authority.34. Thus, perusal of Section 14 of the SARFAESI Act showsthat for taking physical possession of the secured assets interms of Section 14(1) of the SARFAESI Act, the securedcreditor is obliged to approach the CMM/DM by way of awritten application requesting for taking possession of thesecured assets and documents relating thereto and for beingforwarded to it (the secured creditor) for further action. Thestatutory obligation enjoined upon the CMM/DM is toimmediately move into action after receipt of a writtenapplication under Section 14(1) of the SARFAESI Act fromthe secured creditor for that purpose. As soon as such anapplication is received, the CMM/DM is expected to pass anorder after verification of compliance with all formalities bythe secured creditor referred to in the proviso in Section.....27/- Judgmentapl1523.252714(1) of the SARFAESI Act and after being satisfied in thatregard, to take possession of the secured assets anddocuments relating thereto.35. Thus, the underlying purpose of the SARFAESI is toempower the financial institutions to have similar powers asenjoyed by their counterparts, namely, international banks inother countries. One such feature is to empower financialinstitutions to take possession of securities and sell them.After taking over possession of the secured assets, furthersteps to lease, assign or sell the same could also be taken bythe secured creditor. However, Section 14 of the SARFAESIAct indicates that if the secured creditor intends to takepossession of the secured assets, it must approach theCMM/DM by way of an application in writing, and on receiptof such request, the CMM/DM must move into action. Afterpassing an order thereon, they must proceed to takepossession of the secured assets and documents relatingthereto for being forwarded to the secured creditor in terms.....28/- Judgmentapl1523.2528of Section 14(1) read with Section 14(2) of the SARFAESIAct.36. Thus, considering the scheme of the SARFAESI, it isexplicit and crystal clear that possession of the secured assetscan be taken by the secured creditor before confirmation ofthe sale of the secured assets as well as post-confirmation ofthe sale. For taking possession of the secured assets, it couldbe done by the "authorized officer" of the bank as noted inRule 8 of the Security Interest (Enforcement) Rules, 2002.37. Learned counsel for the bank submitted that theapplication before this court itself is not maintainable.38. The Hon’ble Apex Court in the case of M/s.PhoenixArc Private Limited supra, held that remedies against ordersunder the SARFAESI Act should be sought under theprovisions of Act itself rather than invoking Section 428 of theCrPC and action under Section 14 of the SARFAESI Actconstitutes an action taken after the stage of Section 13(4) of.....29/- Judgmentapl1523.2529the SARFAESI Act and, therefore, the same would fall withinthe ambit of Section 17(1) of the Act. 39. Thus, the SARFAESI Act itself contemplates anefficacious remedy for the borrower or the any personaffected by an action under Section 13(4) of the SARFAESIAct by providing for an appeal before the DRT. 40. The SARFAESI Act is a complete code in itself whichprovides the procedure to be followed by the secured creditorand also the remedy to the aggrieved parties including theborrower. In such circumstances, as already taken note of ifthere is any discrepancy in the manner of classifying theaccount of the appellants as NPA or the action taken underSection 13(2) or Section 14 of the SARFAESI Act, DRT isvested with the power to set aside such auction or the orderpassed under Section 14 of the SARFAESI Act at the stageafter the secured creditor invokes the power under Section 13of the SARFAESI Act. .....30/- Judgmentapl1523.253041. The said view is fortified by the Hon’ble Apex Court inthe case of Indian Overseas Bank and anr vs. M/s. Ashok Saw,reported in AIR 2009 SC 2420 wherein it is observed, asunder:"34. The provisions of Section 13 enable thesecured creditors, such as banks and financialinstitutions, not only to take possession of thesecured assets of the borrower but also to takeover the management of the business of theborrower, including the right to transfer by way oflease, assignment or sale for realizing securedassets, subject to the conditions indicated in thetwo provisos to clause (b) of sub-section (4)of Section 13.35. In order to prevent misuse of such widepowers and to prevent prejudice being caused to aborrower on account of an error on the part of thebanks or financial institutions, certain checks andbalances have been introduced in Section 17which allow any person, including the borrower,aggrieved by any of the measures referred to insub-section (4) of Section 13 taken by the securedcreditor, to make an application to the DRT havingjurisdiction in the matter within 45 days from thedate of such measures having taken for the reliefsindicated in sub-section (3) thereof......31/- Judgmentapl1523.253136. The intention of the legislature is, therefore,clear that while the banks and financialinstitutions have been vested with stringentpowers for the recovery of their dues, safeguardshave also been provided for rectifying any error orwrongful use of such powers by vesting the DRTwith authority after conducting an adjudicationinto the matter to declare any such action invalidand also to restore possession even thoughpossession may have been made over to thetransferee.37. The consequences of the authority vested inthe DRT under sub-section (3) of Section17necessarily implies that the DRT is entitled toquestion the action taken by the secured creditorand the transactions entered into by virtueof Section 13(4) of the Act. The legislature byincluding sub-section (3) in Section 17 has goneto the extent of vesting the DRT with authority toeven set aside a transaction including sale and torestore possession to the borrower in appropriatecases. Resultantly, the submissions advanced byMr Gopalan and Mr Altaf Ahmed that the DRT hasno jurisdiction to deal with a post-Section 13(4)situation, cannot be accepted.".....32/- Judgmentapl1523.253242. In view of the above discussion, the contentions oflearned counsel for the applicants that the Additional ChiefJudicial Magistrate is incompetent is not sustainable.43. The present application is also not maintainable inview of efficacious remedy is already available to theapplicants.44. In this view of the matter, the application fails anddeserves to rejected and the same is rejected. Application stands disposed of.45. At this stage, learned counsel for the applicants seeksstay to the impugned order. In fact criminal application underSection 482 of the Code itself is not maintainable. 46. Appropriate remedy is not sought by the presentapplicant. 47. At this stage, no case is made out for staying of theimpugned order. The order for taking possession is passed by.....33/- Judgmentapl1523.2533learned Additional Chief Judicial Magistrate. In view of theprovisions of the SARFAESI Act, against the said order,efficacious remedy is not sought.48. In view of that, oral prayer of present applicants tostay the further proceeding is hereby rejected. (URMILA JOSHI-PHALKE, J.) !! BrWankhede/manisha !!...../-