Authority: High Court at Calcutta, Civil Appellate Jurisdiction

Order Date: 15 October 2026

Case Overview

  • Appeal (MAT 1688 of 2026) filed by Basudeb Ghosh against Union of India and others, challenging a “Vacation Notice” dated 15 September 2026 issued by an Advocate Commissioner appointed by the Chief Judicial Magistrate, Purba Bardhaman, to take over possession of a secured asset under Section 14 of the SARFAESI Act.
  • The secured asset is a mortgaged parcel of land and building measuring 0.005 acre (217.8 sq ft) with a showroom named “Discovery”, held under deed no I‑6388/1989; the total property owned by the late Guruprasad Ghosh measured 0.008 acre, with an additional 0.011 acre on upper floors.
  • A partition suit (Title Suit No. 98 of 2025) was pending in the Civil Court, Senior Division, Burdwan, which had issued a status‑quo order maintaining possession until 11 April 2025, later extended.
  • The bank (Indian Bank) had initiated SARFAESI proceedings after default on credit facilities of Rs 1.45 crore (sanctioned 27 Sep 2018) and Rs 43.5 lakh (sanctioned 2 Jun 2022) to M/s Rina Textiles. Notices under Sections 13(2) and 13(4) were issued on 20 Dec 2025 and 18 Sep 2025 respectively; the property was auctioned on 30 March 2026 with a reserve price of Rs 1 crore.
  • The bank sought and obtained an order dated 17 Dec 2025 from the Chief Judicial Magistrate authorising the Advocate Commissioner to take physical possession and hand it over to the bank.
  • The appellant argued that the civil court’s injunction barred the bank’s possession and that the bank’s action violated the status‑quo; the bank contended that SARFAESI overrides other laws and that it remained a secured creditor.

Observations & Reasoning

  • The Court held that Sections 34 and 35 of the SARFAESI Act give the Act overriding effect over any other law, including civil court orders, and that no civil court has jurisdiction once the Act’s remedies are invoked.
  • The Court relied on precedents ITC Ltd v Blue Coast Hotels (2018), Bajarang Shyamsunder Agarwal v Central Bank of India (2019), United Bank of India v Satyawati Tondon (2010), and R.D. Jain v Capital First Ltd (2023) to affirm that a secured creditor may take actual possession before and after sale, and that aggrieved persons must approach the Debt Recovery Tribunal under Section 17.
  • The schedule of the secured asset in the sale notice limited the bank’s claim to the 0.005 acre mortgaged parcel; the Court found no evidence that the bank attempted to possess the excess land.
  • The appeal was deemed an abuse of process as the appellant had already sought relief in the writ court and the appropriate remedy lay before the tribunal.

Final Outcome

  • The appeal is dismissed; the order allowing the bank to take possession of the mortgaged asset is upheld.
  • Costs of Rs 20,000 are imposed on the appellant, payable to the State Legal Services Authority, West Bengal.
  • Photocopies of the judgment may be obtained upon compliance with formalities.

Topics: SARFAESI, Banking Regulation, Possession Rights