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2013 (8) TMI 1091 - SC - Indian LawsMerger of Appeals - Challenging the legality of the proceedings of Judicial Magistrate taken under SARFAESI Act - Conditions for Possession of the secured assets - The first Respondent is a guarantor of the borrower to loan transaction whereby the second Respondent borrowed money from the Appellant .the first Respondent created a mortgage on certain property hereinafter referred to as the "secured asset" owned by him to secure the loan. A notice under Section 13(2)2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act") demanding the repayment of the loan amount along with interest within a period of sixty days was issued inter alia to the borrower as well as the guarantor (Respondent Nos. 2 and 1 herein). The first Respondent neither made the payment nor raised any objection to the said demand. Failure to which court appointed an Advocate commissioner to take possession of the secured asset and to handover the same to the Appellant herein. HELD THAT:- Both the Appeals raised a common question of law, the same are being disposed of by this common Judgment. On the date of the impugned order the law did not oblige the Magistrate to undertake any such exercise. Apart from that court is satisfied on examination of the content of the affidavit that all the basic requirements necessary for granting the request of the Appellant of delivery of the possession of the secured asset are asserted to have existed on the date of application. Therefore, court do not see any illegality in the impugned order. The appeal is allowed. The order of the High Court is set aside.
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