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TMI Blog2019 (9) TMI 1734X X X X Extracts X X X X X X X X Extracts X X X X ..... who are borrowers and guarantors as well in the present case. A reply has been filed in the matter and the respondent no.2-Jila Sahkari Kendriya Bank Maryadit, Khargone has not disputed the aforesaid fact that the land in question is agricultural land, however they have stated that against an order passed under Section 14 of SARFAESI Act, 2002 there is a remedy under Section 17 SARFAESI Act, 2002 to prefer an appeal before the Debt Recovery Tribunal. It has also been stated that the petitioners have taken a loan of Rs.3,16,000/- and the same was not paid. Respondent no.2 has approached the District Magistrate and the District Magistrate has rightly passed an order directing the Tehsildar to take possession of the property in question. A prayer has been made for dismissal of the writ petition. Shri Vinay Gandhi, learned counsel appearing for the State has argued before this Court that the petitioners does have a remedy under Section 17 of SARFAESI Act, 2002 and therefore, on the ground of alternative remedy the petition deserves to be dismissed. Heard learned counsel for the parties at length and perused the record. In the present case, the undisputed facts reveal that the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that different fees may be prescribed for making the application by the borrower and the person other than the borrower] [Explanation : For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this subsection (1) of Section 17]. (2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to apply in certain cases.- The provisions of this Act shall not apply to-- (a) a lien on any goods, money or security given by or under the Indian Contract Act, 1872 (9 of 1872; or the Sale of Goods Act, 1930 (3 of 1930) or any other law for the time being in force; (b) a pledge of movables within the meaning of section 172 of the Indian Contract Act, 1872 (9 of 1872); (c) creation of any security in any aircraft as defined in clause (1) of section 2 of the Aircraft Act, 1934 (24 of 1934); (d) creation of security interest in any vessel as defined in clause (55) of section 3 of the Merchant Shipping Act, 1958 (44 of 1958); (e) any conditional sale, hire-purchase or lease or any other contract in which no security interest has been created; (f) any rights of unpaid seller under section 47 of the Sale of Goods Act, 1930 (3 of 1930); (g) any properties not liable to attachment (excluding the properties specifically charged with the debt recoverable under this Act) or sale under the first proviso to sub-section (1) of section 60 of the Code of Civil Procedure, 1908 (5 of 1908); (h) any security interest for securing repayment of any financial asset not exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus protects agriculturists from losing their source of livelihood and income i.e. the agricultural land, under the drastic provision of the Act. It is also intended to deter the creation of security interest over agricultural land as defined in Section 2 (zf) 36. Thus, security interest cannot be created in respect of property specified in Section 31. 46. In the present case, security interest was created in respect of several parcels of land, which were meant to be a part of single unit i.e. the five star hotel in Goa. Some parcels of land now claimed as agricultural land were apparently purchased by the debtor from agriculturists and are entered as agricultural lands in the revenue records. The debtor applied to the revenue authorities for the conversion of these lands to non-agricultural lands which is pending till date due to policy decision. 47. It is undisputed that these lands were mortgaged in favour of the creditor under a deed dated 26.02.2010. Obviously, since no security interest can be created in respect of agricultural lands and yet it was so created, goes to show that the parties did not treat the land as agricultural land and that the debtor offered the land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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