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'Civil court lacks jurisdiction to enforce security interest over secured assets'
5/18/2017 11:22:04 PM
Early Times Report
Jammu, May 18: Additional sessions judge, Jammu, Shahzad Azeem today said there 'remains no doubt that civil court lacks jurisdiction to enforce security interest of secured creditor over secured assets. This power exclusively lies with DRT under section 17 of SARFAESI Act, and in J&K is exercisable by the court of district judge, having jurisdiction over the borrower in terms of section 17-A of the Act'.
The court directive came in an appeal filed by one Garu Ram under section 17-A of SARFAESI Act against the February 02, 2017 notice under section 13(4) of the Act by respondents.
The judge said section 17 (17-A in J&K) of SARFAESI Act 'empowers an aggrieved person (including borrower) to make application against any of the measures referred in section 13 (4) of the Act and DRT (court of District Judge) shall consider whether any of these measures taken by the secured creditor are in accordance with the provisions of this act and the rules made thereunder. If it is found that the measures are not in accordance with the provisions of this Act and the rules made thereunder, inter alia, it may by order require restoration of the management of the borrower's business or restoration of the possession of his secured assets. Therefore, for enforcing security interest over the immoveable property, taking over possession of secured assets is sine-qua-non, and it is only, thereafter, debt can be realized by auction or other modes available to the secured creditor'.
With these observations, the court held that the impugned notice, under challenge 'proceeds on the premise that owners of the property were directed by the authorized officer of the concerned bank to handover the possession of the secured assets within 30 days'. "Therefore, from the tone and tenor of the notice under challenge it is obvious that only the applicant is asked to handover the vacant possession of the property in question. Thus, it cannot be said that the measure as envisaged under section 13(4) of SARFAESI Act has yet been taken. Therefore, for this reason appeal is not maintainable," the court directed.
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