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AUROVILL APPLIANCES PVT LTD Versus DISTRICT MAGISTRATE AND 4

2016 (2) TMI 582 - GUJARAT HIGH COURT

Eviction from disputed property - jurisdiction of Additional District Magistrate under Section 14 of SARFAESI Act - petitioner is a lessee - Held that:- It is a settled position of law that under Section 14 of the SARFAESI Act, the Chief Metropolitan Magistrate or the District Magistrate, acts in assistance of the secured creditor in taking possession of the secured assets. In the present case, the power under Section 14 has been exercised by the Additional District Magistrate by assisting the r .....

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of the view that the petitioner is guilty of suppression of material facts which would have a vital effect on the adjudication of the petition. Further, in view of the implementation of the impugned order under Section 14 of the SARFAESI Act, the petitioner cannot seek to undo the auction and its legal consequences, without even raising a challenge to it.

For the aforestated reasons, this Court does not consider it necessary to deal with the submissions regarding the availability of .....

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bove, this Court considers the present petition to be devoid of merit. - SPECIAL CIVIL APPLICATION NO. 8852 of 2015 - Dated:- 5-10-2015 - SMT. ABHILASHA KUMARI, J. FOR THE PETITONER : MR JAL SOLI UNWALA, ADVOCATE, MS TEJAL A VASHI, ADVOCATE FOR THE RESPONDENT : MS SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER, MR KM PARIKH, ADVOCATE C.A.V. JUDGMENT 1. This petition under Articles 226 and 227 of the Constitution of India has been preferred, inter alia, with a prayer to quash and set aside the impug .....

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ion 13 of Section 13 of the SARFAESI Act. It is further prayed that the seals and lock applied by respondent No.3 - Bank on the premises of which the petitioner is a lessee be opened and the possession thereof be restored to the petitioner. 2. Briefly stated, the facts of the case emerging from the memorandum of the petition are to the following effect: 2.1 The petitioner is a Company, duly registered under the provisions of the Companies Act, 1956 and is being represented through its Director. .....

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rty), owned by respondent No.4 ( the original owner for short). 2.3 The petitioner asserts that it is the lessee of the disputed property and is carrying on its business in the nature of a Mall known as Mother Mall , which is being run by the petitionerCompany, of which he and his wife are Directors. The husband of respondent No.4 Kokilaben Babubhai Patel, the original owner, had taken a loan, from the respondent Bank on 07.01.2012 by mortgaging the disputed property as a collateral security. Th .....

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f ₹ 2 lakhs was paid by the petitioner to the original owner towards the lease between the original owner and the petitioner. 2.5 On 07.02.2012, the petitioner and the original owner completed the formality of signing the lease deed of the disputed property, for a period of ten years. The petitioner had also undertaken the exercise of renovating the disputed property and incurred expenses towards the same. 2.6 Thereafter, due to the default in the repayment of the installments of the cashc .....

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014, the possession notice under section 13(4) of the SARFAESI Act was published in a daily newspaper. 2.8 According to the petitioner, though the respondentBank had knowledge that the petitioner is the lawful lessee of the disputed premises, its authorised officer did not join the petitioner as party to the proceedings under the SARFAESI Act. Without putting the petitioner to notice, an application was made to the Collector/ District Magistrate, Valsad, for taking over the possession of the dis .....

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fication regarding any leasehold rights created with regard to the disputed property. The petitioner has, therefore, impugned the order dated 09.05.2014 in the present petition. 2.10 Subsequently, on 29.05.2014, the authorised officer of the respondentBank made an application to the Superintendent of Police regarding the execution and implementation of the impugned order. On 11.06.2014, the respondentBank forcefully and, according to the petitioner, under the guise of the impugned order, carried .....

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ant of the disputed property and for the grant of a permanent injunction, restraining the respondentBank from evicting the petitioner forcefully and without due process of law. 2.11 According to the petitioner, the husband of the original owner gave a proposal for a OneTime Settlement to the respondentBank on 18.06.2014 and also paid an amount of ₹ 10 lakhs. 2.12 On 19.06.2014, the application for interim relief at Ex.5, preferred by the petitioner in the suit, was partlyallowed. The defen .....

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.07.2014, and the order below Ex.5 was quashed and set aside. 2.14 In the meanwhile, on 10.07.2014, the respondentBank issued an auction notice regarding the disputed property in the newspaper. According to the petitioner, this notice did not mention that the possession of the disputed property was with the petitioner and the goods of the petitioner were lying in the premises. 2.15 The original owner gave a public notice dated 05.08.2015 in the daily newspaper, inter alia, informing the general .....

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tBank on 13.08.2014. 2.16 The original owner, who was arrayed as a defendant in the suit instituted by the petitioner, preferred an application for the review of the order passed by the Principal District Judge dated 31.07.2014 in Miscellaneous Civil Appeal No.19 of 2014. The review application came to be dismissed. 2.17 By a letter dated 28.08.2014, the petitioner requested the respondentBank to return the goods lying in the disputed property. This letter was replied to by the respondentBank on .....

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ssed a letter to the petitioner, asking it to come on 08.09.2014, to take away its goods from the disputed property. On 08.09.2014 and 22.09.2014, the petitioner addressed two letters to the respondentBank, pointing out that its case was covered by the principles of law enunciated by the Supreme Court in the case of Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited And Others reported in (2014)6 SCC 1. A legal notice was given by the respondentBank to the petition .....

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uit on 10.12.2014, being Regular Civil Suit No.161 of 2014, under the provisions of Section 6 of the Specific Relief Act, 1963. 2.20 On 10.03.2015, the respondentBank gave a final notice to the petitioner to come and take possession of its goods, to which the petitioner replied vide communication dated 03.04.2015. The petitioner alleges that its goods were to be auctioned by the respondentBank vide auction notice on 02.06.2015, but for the said purpose the petitioner has already filed a separate .....

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as contemplated by Section 14 of the SARFAESI Act. Section 14 of the SARFAESI Act mandates that any application preferred by the secured creditor has to be decided and heard either by the District Magistrate or the Chief Metropolitan Magistrate, after being satisfied with the affidavit affirmed by the authorised officer of the Bank. In the present case, the impugned order, having been passed by the Additional District Magistrate, is without jurisdiction, illegal, nonest and against the mandate .....

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r and the resultant action of the respondent authorities is violative of Article 300A of the Constitution of India since, by virtue of the impugned order, the petitioner, who is a lessee, has been deprived of its possession of the leased property without any authority of law. The petitioner, being a lessee, has a right to be in possession of the secured asset during the period of such lease. There are no provisions in the SARFAESI Act that authorise the respondentauthorities to dispossess a lawf .....

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a notice and an opportunity of hearing from the District Magistrate before the application under Section 14 of the SARFAESI Act was decided. The District Magistrate was bound to satisfy himself as to whether there is a valid lease, or not. The authorised officer of the respondentBank has not declared in his application under Section 14 of the SARFAESI Act, that the petitioner is in possession of the secured asset under a lease agreement with the borrower. Nor has the District Magistrate inquire .....

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secured asset is sought to be taken by the secured creditor. This was revealed by the possession notice which was affixed on the premises on 11.06.2014. It is only when the lessee resists the attempt on the part of the secured creditor in taking possession of the secured asset that the application under Section 14 ought to be filed. In the present case, the notice was affixed on 11.06.2014, and the petitioner came to know for the first time about the possession being taken on that date. The peti .....

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vardhan Sondagar v. International Assets Reconstruction Company Limited And Others (supra). 4.6 That the only remedy available to the petitioner is to challenge the impugned order under Section 14 of the SARFAESI Act by approaching this Court, therefore, this Court may grant the prayers made in the petition. 5. Ms.Shruti Pathak, learned Assistant Government Pleader for respondents Nos.1 and 2, has submitted that the present petition is not an adjudication under Section 14 of the SARFAESI Act. Th .....

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ion of India - 2012(2) GLH 752 (ii) Standard Chartered Bank v. V.Noble Kumar And Others - (2013)9 SCC 620 7. The petition has been strongly resisted by Mr.K.M.Parikh, learned advocate for respondent No.3 - Bank, by making the following submissions: 7.1 That the petition ought not to be entertained as the petitioner has suppressed material facts. It is an admitted fact that the petitioner did not challenge the order under Section 14 of the SARFAESI Act at the relevant point of time, but participa .....

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e petitioner but has not been disclosed. Hence, the petitioner has not come with clean hands. This Court may, therefore, not entertain the petition and dismiss it without entering into the merits, as the petitioner is not entitled to any relief. In support of this submission, reliance has been placed upon the judgment of the Supreme Court in Prestige Lights Ltd. v. State Bank of India - (2007)8 SCC 449. 7.2 That the petition is not maintainable in view of the fact that the petitioner has challen .....

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e the said order at this stage. The present petition is not maintainable in the eye of law, and may not be entertained. In support of the above submissions, reliance has been placed upon the following judgments: (i) United Bank of India v. Satyawati Tondon And Others - (2010)8 SCC 110 and (ii) Kanaiyalal Lalchand Sachdev And Others v. State of Maharashtra And Others ( 2011)2 SCC 782 7.3 That the petition is also not maintainable on the ground that the petitioner has an alternative, efficacious, .....

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n it is held that the order passed by the District Magistrate/ Chief Metropolitan Magistrate is a measure under Section 13(4) and the remedy lies under Section 17 of the SARFAESI Act. 7.4 That when an application is made under Section 17 of the SARFAESI Act by a person claiming to be a tenant under the borrower, or any person under whom the borrower claims title, the Debt Recovery Tribunal has jurisdiction to entertain the application and inquire into the question whether the applicant had any r .....

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dia - AIR 2007 Madras 148, wherein it is held that any tenancy created by the mortgagor after the mortgage in contravention of Section 65A of the T.P.Act would not be binding on the Bank and in any event, such tenancy rights should stand determined once action under Section 13(4) of the SARFAESI Act had been taken by the Bank. Hence, when the tenancy is disputed by the Bank, the remedy available to the petitioner is to approach the Debt Recovery Tribunal by way of an application under Section 17 .....

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W. P. Nos.11828(W), 12210(W), 11993(W), 11787(W), 5651(W) and 10048(W) of 2015 decided on 06.08.2015. 7.6 That the ratio of the judgment in the case of Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited And Others (supra) would not apply to the facts of the present case. In the said judgment, the situation post Section 13(4) measures were not examined by the Supreme Court, which only examined the right of a tenant to challenge an order passed under Section 14 of t .....

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tled to file a petition under Article 226 of the Constitution of India after the secured asset has been disposed of by public auction. In the present case, the auction sale has been confirmed and concluded in favour of respondent No.5 and the physical possession of the disputed premises has already been handed over to respondent No.5 on 01.10.2014, that is, prior to the filing of the petition. The judgment in Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited And O .....

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gar v. International Assets Reconstruction Company Limited And Others (supra), wherein it is held that the order under Section 14 by the District Magistrate is to aid the Bank in order to realize the secured assets. It is submitted that the order under Section 14 of the SARFAESI Act has no independent existence but is an order analogous to execution proceedings, and is appealable under Section 17 of the SARFAESI Act. 7.8 Reliance has also been placed on another judgment of the Punjab and Haryana .....

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e contention of the respondentBank that the petitioner has suppressed material facts is totally misconceived and of no avail to the respondentBank, as the auction proceedings are not under challenge in the petition. The fact that the petitioner had participated in the auction proceedings is not a material fact, as the petitioner has not derived any benefit from not disclosing it. By not mentioning this fact in the petition, the merits of the case would not be affected as it does not go to the ro .....

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nted by the Debt Recovery Tribunal. However, this Court, under its extraordinary jurisdiction can always restore the possession of the secured asset to the petitioner. 10.3 That the judgments in the case of Padam Motors Pvt. Ltd. v. District MagistratecumDeputy Commissioner and Ors. (supra) and Punjab Chemical Industries v. District MagistratecumDeputy Commissioner (supra), relied upon by the learned advocate for the respondentBank are not applicable to the facts of the case, inasmuch as the Hig .....

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jab and Haryana High Court is concerned, it is submitted that the High Court of Punjab and Haryana has not followed the judgment of the Supreme Court in Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited And Others (supra), though later in point of time, but has chosen to follow the judgment in Kanaiyalal Lalchand Sachdev And Others v. State of Maharashtra And Others (supra) etc. which is an earlier one. 10.4 That the submission of the respondentBank that the lease .....

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Section 65A of the T.P.Act. In any event, the lease of the petitioner is in consonance with Section 13(13) of the SARFAESI Act. 11. This Court has heard learned counsel for the respective parties at length and has thoughtfully considered the submissions advanced at the Bar. 12. The main ground canvassed by the learned advocate for the petitioner is that the petitioner is a lessee which has been deprived of its possession of the disputed property by the impugned order dated 09.05.2014, passed by .....

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suance of the notice under Section 13(2) of the SARFAESI Act, on 28.10.2013, therefore, as per the provisions of Section 13(13) of the SARFAESI Act, the lease is valid. In view of the provisions of Section 35 of the SARFAESI Act, there is an overriding effect over the provisions of Section 65A of the T.P.Act. The petitioner, therefore, could not have been dispossessed from the disputed property by the respondentBank. It has further been submitted that the petitioner came to know, for the first t .....

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ondagar s case are concerned, there can be no dispute regarding the same. The learned advocate for the petitioner has laid emphasis upon the following paragraphs of the said judgment: 21. When we read the different provisions of Section 13 of the SARFAESI Act extracted above, we find that subsection (4) of Section 13 provides that in case the borrower fails to discharge his liability in full within sixty days from the date of notice provided in subsection (2) of Section 13 of the SARFAESI Act, t .....

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he secured asset until the lawful possession of the lessee gets determined. There is, however, no mention in subsection (4) of Section 13 of the SARFAESI Act that a lease made by the borrower in favour of a lessee will stand determined on the secured creditor deciding to take any of the measures mentioned in Section 13 of the said Act. Subsection (13) of Section 13 of the SARFAESI Act, however, provides that after receipt of notice referred to in subsection (2) of Section 13 of the SARFAESI Act, .....

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5 of the SARFAESI Act, and a lease of a secured asset made by the borrower after he receives the notice under subsection (2) of Section 13 from the secured creditor intending to enforce that secured asset will not be a valid lease. 22. ..... Section 105 thus provides that a lessee of an immovable property has a right to enjoy such property, for a certain time or in perpetuity when a lessor leases an immovable property transferring his right to enjoy such property for a certain time or in perpetu .....

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ed asset shall stand determined when the secured creditor decides to take the measures mentioned in Section 13 of the said Act. Without the determination of a valid lease, the possession of the lessee is lawful and such lawful possession of a lessee has to be protected by all courts and tribunals. ... ... ... 25. ....We have already held that Section 13 of the SARFAESI Act does not provide that the lease in respect of a secured asset will get determined when the secured creditor decides to take .....

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olitan Magistrate or the District Magistrate for assistance to take possession of the secured asset, he must state in the affidavit accompanying the application that the secured asset is not in possession of a lessee under the valid lease made prior to creation of the mortgage by the borrower or made in accordance with Section 65A of the Transfer of Property Act prior to receipt of a notice under subsection (2) of Section 13 of the SARFAESI Act by the borrower...... 26. ....Where, therefore, suc .....

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the secured creditor to sell and transfer the same under the provisions of the SARFAESI Act. Subsection (6) of Section 13 of the SARFAESI Act provides that any transfer of secured asset after taking possession of secured asset by the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. In other words, the transferee of a secured asset will not acquire any right in a secu .....

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for the respondentBank, regarding suppression of material facts on the part of the petitioner. It has been stated on behalf of the respondentBank that the petitioner has suppressed the material fact that after the passing of the impugned order dated 09.05.2014, by the Additional District Magistrate, the disputed property had been auctioned. The petitioner had unsuccessfully participated in the auction. It has been urged on behalf of the respondentBank that the impugned order passed by the Addit .....

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of the participation of the petitioner in the auction does not amount to the suppression of a material fact as the auction proceedings have not been challenged in the petition. According to the learned advocate for the petitioner, the petitioner has not derived any benefit from the alleged suppression and not mentioning the petitioner s participation in the auction would not adversely affect the merits of the matter or go to its roots. 18. In S.J.S.Business Enterprises (P) Ltd. v. State of Biha .....

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f the case. It must be a matter which was material for the consideration of the court, whatever view the Court may have taken...... 19. Per contra, the learned advocate for the respondentBank has relied upon Prestige Lights Ltd. v. State Bank of India (supra), wherein, the Supreme Court has stated as under: 33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Cou .....

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t without entering into merits of the matter. 34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commrs,. [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 (CA)], in the following words: "(I)t has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of .....

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rogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by .....

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s not of a material fact. 21. In this regard, it may be significant to note that the order under challenge is dated 09.05.2014. Admittedly, the possession of the disputed property after the auction, has been handed over to respondent No.5 on 01.10.2014. The petition has been admitted to file on 25.05.2015. The petitioner was in full knowledge of the fact that much before the petition was filed, the disputed property had already been auctioned and its possession handed over to respondent No.5. Th .....

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ndagar s case, at a stage when the auction has been concluded and the possession of the disputed property is no longer with the respondentBank. Had the petitioner approached the Court immediately after the passing of the order under Section 14 of the SARFAESI Act, the situation would have been different as, at that point of time, no auction had taken place. At this stage, the petitioner is trying to put back the clock and ignore the subsequent events of the auction taking place and the handing o .....

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of such debts were classified as NPAs. Proceedings under Section 13(2) of the SARFAESI Act commenced and the borrowers failed to discharge their liability in full within the statutory period of sixty days from the date of the notice under Section 13(2). The secured creditors exercised their rights under subsection 4 of Section 13 of the SARFAESI Act to take possession of the secured assets of the borrowers. The secured assets were under the possession of the appellants who claimed that they were .....

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med and concluded in favour of the auction purchaser. In the case before the Supreme Court, the lessees were in possession of the secured assets, whereas, in the present case, the possession of the secured asset has been handed over to respondent No.5 by the respondentBank on 01.10.2014, much prior to the filing of the present petition. 25. This aspect has been suppressed by the petitioner, as well as its participation in the auction and the creation of third party rights and interest over the p .....

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stage when there is a threat of dispossession of the petitioner, who did not choose to challenge the order under Section 14 of the SARFAESI Act at the relevant point of time. 26. In addition thereto, the suppression by the petitioner of the vital fact of the auction, its participation in it and handing over of the possession of the property to respondent No.5, makes it clear that though the petitioner has not come to the Court with clean hands, it is seeking to derive advantage from the princip .....

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aches the High Court praying for the exercise of its discretionary and extraordinary jurisdiction under Article 226 of the Constitution of India, it must place all the facts before the Court candidly and without any reservation. If there is a suppression of material facts on the part of the petitioner or twisted facts have been placed before the Court, the writ Court may refuse to entertain the petition and dismiss it without entering into the merits of the matter. Following the principles of la .....

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where the property has already been auctioned and its possession delivered to the successful auction purchaser. The petitioner has participated in the auction, which amounts to acquiescence to the order dated 09.05.2014 under Section 14 of the SARFAESI Act. It is deemed to have waived its objections to the said order. An opportunity was available to the petitioner to challenge the order after it was passed but it chose not to do so. Once the order has been implemented, statusquo ante cannot be .....

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