Aminul Hoque and Others v. Cholamandalam Investment and Finance Company Limited and Another

DRT14 Sept 2026SA/47/2026

Case brief

AI extract

What is this about?

The Tribunal dismissed an application challenging a Section 14 order passed by the Chief Judicial Magistrate allowing the bank to take physical possession of mortgaged property. The Court held that the bank complied with Section 13 notice requirements and statutory duties, and that an advocate appointed by the Magistrate is a valid officer for possession purposes, citing Supreme Court precedents. The challenge to the mechanical nature of the order and property description was dismissed. Separately, a writ petition challenging the SIPCOT Balewadi application was also dismissed.

What did the court decide?

Adjournment and stay granted. Bail granted in criminal case. Application dismissed.

Aminul Hoque and Others versus Cholamandalam Investment and… — Banking and Recovery | DRT (2026)

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ORDER SHEET DEBTS RECOVERY TRIBUNAL, SILIGURI

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SA/47/2026

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Aminul Hoque & Ors Vs

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Cholamandalam Investment & Finance Company Ltd. & Anr

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Applicants

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Respondents

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Date of Order	Order with Signature	Office action with date and dated signature of parties when necessary.
Item No.35	Order No. 11

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14.09.2026

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Present :-

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Counsel for the Applicant No.1 & 2 : Mr. Koushik Modak, virtual mode.

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Counsel for the Applicant No.3 : None. Counsel for the Respondent F.I. : Mr. Sagnik Bhowmick, virtual mode.

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Today there is one Resolution of the Bar.

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Judgment is passed in SA/47/2026 and a copy of the Judgment is kept on record.

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Let the judgment be uploaded on website of the Tribunal and the Registry is directed to serve/send copy of this judgment to the parties free of cost.

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Record be consigned to the record room along with the judgment.

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RAKESH Digitally signed by RAKESH PATI PATI TIWARI Date: 2026.09.15 TIWARI 17:21:41 +05'30' (RAKESH PATI TIWARI) Presiding Officer DRT-Siliguri

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IN THE DEBTS RECOVERY TRIBUNAL, SILIGURI

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S.A. No.47/2026

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Aminul Hoque, C/o. Ruhul Amin, Trimohini, P.S. Nowda, Ramnachandpur, DistrictMurshidabad, PIN-742175.

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A.R. Traders, Trimohini, P.S. Nowda, Ramnachandpur, District-Murshidabad, PIN-742175.

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Murshida Khatun C/o. Aminul Hoque, Trimohini, P.S. Nowda, Ramnachandpur, DistrictMurshidabad, PIN-742175.

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…………………….Applicants

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Cholamandalam Investment and Finance Company Limited, "Chola Crest", C54-55 & Super B-4, Thiru-Vi-Ka Industrial Estate, Guindy, Chennai- 600032.

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Authorized Officer, Cholamandalam Investment and Finance Company Limited, 55/55/1, Chowringee Road, 5th Floor, Kolkata- 700071.

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……..…………Respondents Counsel for the applicants No. 1 & 2 : Mr. Koushik Modak. Counsel for the applicants No. 3 : Ms. Mousumi Pal. Counsel for the respondent : Mr. Sagnik Bhowmick.

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PRESIDING OFFICER: RAKESH PATI TIWARI Date of Judgment -14.09.2026

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J U D G M E N T

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Instant SA has been filed by the applicant challenging the 13(4) notice dated 24.01.2026 and during the pendency of the S.A. two IA’s bearing No. 617/2026 & 619/2026 have been filed by the applicants challenging the Ld. C.J.M Order dated 01.04.2026 passed u/s 14 of the SARFAESI Act regarding talking physical possession of the secured asset.

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ORDER ON IA NO. 617/2026 & 619/2026

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Challenging the self same order dated 01.04.2026 of the Ld. C.J.M Murshidabad two separate IA’s have been filed out of which one by applicant no. 1 & 2 & the other by applicant No. 3.

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Case of the applicant no. 3 in I.A. No. 617/2026 is that being the co-applicant in the financial facility availed by Applicant No. 1 from the Defendant Bank, has challenged the measures taken by the Bank under the SARFAESI Act, 2002, principally contending that no notice under Section 13(2) or other statutory notice was ever served upon her. She states that she came to know of the proceedings only upon receipt of the intimation possession notice dated 03.06.2026 proposing to take physical possession of the property pursuant to the order dated 01.04.2026 passed by the learned Chief Judicial Magistrate, Murshidabad under Section 14 of

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Digitally signed by RAKESH PATI TIWARI Date: 2026.09.15 17:22:07 +05'30'

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RAKESH PATI TIWARI

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the Act. According to Applicant No. 3, the property sought to be taken into possession is not the property mortgaged with the Bank; rather, she is the owner of the residential property described in her title deed No. I-0028 of 2023, which, according to her, was never mortgaged to the Defendant Bank. She further alleges that the Bank had earlier affixed a possession notice dated 24.01.2026 on her said property, despite her protest, and thereafter again sought to proceed against the same property. It is her specific case that the property mentioned in the order under Section 14 and the possession notice does not correctly correspond with the description and boundaries of the mortgaged property, and that the Bank suppressed material facts while obtaining the said order. She has also challenged the alleged non-compliance with the mandatory requirements of Sections 13 and 14 of the SARFAESI Act and the Security Interest (Enforcement) Rules, 2002, and contends that the order dated 01.04.2026 was passed mechanically and that the proposed physical possession of her property would cause irreparable loss and render her statutory remedy under Section 17 illusory. On these grounds, Applicant No. 3 has prayed for restraining the Defendant Bank from taking physical possession or proceeding further pursuant to the order dated 01.04.2026.

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Case of the applicant no. 1 & 2 in I.A. No. 619/2026 is that applicant no. 1 availed a Home Equity Finance facility of Rs. 17,00,000/- from the respondent bank on 31.12.2023 against equitable mortgage of the property in question, but the sanction letter did not contain a proper description of the secured asset and, according to the applicants, the actual disbursement was made only in February, 2024 despite the bank showing disbursement on 31.12.2023. The applicants contend that their loan account was allegedly classified as NPA on 03.11.2025 and thereafter the respondent bank issued a demand notice dated 10.11.2025 under Section 13(2) of the SARFAESI Act demanding Rs.20,45,316/-, followed by a possession notice dated 24.01.2026 under Section 13(4), although the applicants assert that they never received the demand notice. They further contend that on 04.06.2026 they came to know, for the first time, of an order dated 01.04.2026 passed by the Ld. Chief Judicial Magistrate, Murshidabad, Berhampore under Section 14 of the SARFAESI Act, along with an intimation notice dated 03.06.2026 issued by the Advocate Commissioner for taking physical possession. The applicants challenge the said proceedings principally on the grounds that the statutory notices were not duly served or affixed upon the secured asset, the property description and boundaries mentioned in the Section 14 order do not tally with the registered deed, the order records an incorrect date of sanction of the loan, does not disclose or verify the date of publication of the possession notice in newspapers, and was passed mechanically without

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RAKESH Digitally signed by PATI RAKESH PATI TIWARI Date: 2026.09.15 17:22:19 +05'30' TIWARI

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proper application of mind or verification of the statutory requirements under Section 14 and the relevant Rules. It is also alleged that the notices were affixed upon the residential property of applicant no. 1, which is not the mortgaged property, and that the respondent bank is threatening to dispossess the applicants from such residential property without any security interest having been created therein. The applicants further question the manner and extent of delegation made by the Ld. Chief Judicial Magistrate to the Advocate Commissioner and allege that the order was obtained on the basis of incorrect or suppressed facts and without compliance with the mandatory affidavit and other requirements prescribed under Section 14.

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Although two separate written objection of I.A. No. 617/2026 & I.A. No. 619/2026 have been filed by the respondent bank but it is same in verbatim and thus written objection of the bank in both the IA is that the application is barred by the principle of waiver, estoppels and acquiescence. Further, the applicants have no locus-standi to file the instant application. The contention of the respondent bank is that through the notice issued under section 13(2) of the SARFAESI Act, 2002, on 10.11.2025, the Applicants were duly informed that the loan account of the applicant had been classified as NPA on 03.11.2025. It has been contended by the respondents that the 13(2) notice dated 10.11.2025 included an explicit breakdown and quantification of the debts comprising the demanded amount, fully aligning with the requirements stipulated in Section 13(3) of the SARFAESI Act. Further contention of the respondents is that following the expiration of the statutory period of 60 days, the respondent bank proceeded with the enforcement procedures as outlined in the SARFAESI Act of 2002 and only after the completion of these proper and legally mandated procedures, the respondent bank took the definitive step of issuing the 'Possession Notice' on 24.01.2026 and the respondent bank published the said possession notice on 28.01.2026 in two widely circulated newspapers "Indian Express" in English and "Aajkal" in the vernacular language and affixed the possession notice at a conspicuous outer part of the mortgage property. It is further contended that the applicants, despite repeated opportunities and statutory notices, failed to liquidate the outstanding dues, compelling the respondent bank to initiate proceedings under the SARFAESI Act and to approach the Ld. Chief Judicial Magistrate under Section 14 for taking physical possession of the secured asset. It is contended that the Ld. Chief Judicial Magistrate, after considering the application, relevant documents and the statutory affidavit filed by the Authorized Officer and upon being satisfied about compliance with the requirements of Section 14, passed the order dated 01.04.2026 authorising taking of physical possession of the secured asset, and

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RAKESH Digitally signed by RAKESH PATI PATI TIWARI Date: 2026.09.15 TIWARI 17:22:29 +05'30'

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therefore the allegation of mechanical or non-application of mind is denied. The respondent further submits that the objections raised by the applicants regarding discrepancies in the date and other particulars appearing in the Section 14 order are merely clerical/typographical in nature, which neither go to the root of the matter nor cause any prejudice to the applicants and, therefore, cannot invalidate otherwise lawful proceedings. According to the respondent, the applicants are attempting to defeat the recovery proceedings by raising hyper-technical objections despite their admitted liability and persistent default. It is accordingly contended that the order dated 01.04.2026 is legal, valid and sustainable, having been passed upon due compliance with the statutory requirements, and that the SARFAESI measures undertaken by the respondent bank are lawful and bona fide; hence, the application deserves to be dismissed.

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In I.A. No. 619/2026 rejoinder has been filed by the applicant no. 1 & 2 which is nothing but just repetition of IA No. 619/2026 except that the applicants reiterate that the description and boundaries of the secured asset mentioned in the Section 14 order do not tally with the original registered Deed No. I-2025/22, a copy of which was annexed with the application, thereby creating serious doubt regarding the identity of the property sought to be possessed. According to the applicants, the respondent bank has failed to specifically controvert or explain the said material discrepancy and has also failed to disclose the application under Section 14 and the nine-clause affidavit filed before the Ld. Chief Judicial Magistrate, which, according to them, indicates suppression of material facts. The applicants deny that their challenge is based on mere self-serving assertions and maintain that the relevant documentary materials have already been placed on record. They further contend that the respondent bank has not complied with the mandatory provisions of the SARFAESI Act and the Rules framed thereunder and, by suppressing the correct description of the mortgaged property, has sought to obtain possession of a property not properly identified as the secured asset.

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Heard Ld. Counsels of both the sides of applicants and the Ld. Counsel of the respondent bank on I.A. No. 617/2026 & 619/206 and perused the record.

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First plea in the I.A. No. 617/2026 is that the property was not mortgaged with the respondent bank. Instant plea has been taken by the applicant no.3 in para no. 13 but the specific objection has not been filed by the respondent rather objection of para no. 5 to 18 has been given in para no. 13 of W.O. and at the last sub-para of page no. 7 it has been pleaded that as per loan agreement property was mortgaged and property detail is given at running page no.

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RAKESH PATI TIWARI

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Digitally signed by RAKESH PATI TIWARI Date: 2026.09.15 17:22:41 +05'30'

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44 and 45 under the security (details of property) schedule. It is pertinent to mention that the same property description is mentioned in 13(2) notice (running page no. 16 of WO of the IA) and possession notice (running page no. 22 to WO). Thus it is incorrect to say that property was not mortgaged.

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Second plea on the IA is that in the order of Ld. C.J.M, description of the property is not correctly mentioned.

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From perusal of mortgage deed filed by the applicant and the order of Ld. C.J.M it transpires that in the south direction of property as per deed there was Ramzan Mondal and in the order also same Ramzan Mondal is mentioned. In north direction as per deed there was village road and in the order of Ld. C.J.M. also 12 ft. wide road is mentioned. In East direction as per deed Goftar Mondal and Abdul Kader Mondal and their legal heirs are mentioned but in the order name of Nurul Master is mentioned who may be the legal heirs of Gaftar Mandal & Abdul Kader. In West Direction as per the deed Saklain Seikh and Jubair Akhter is in the boundary and in the CJM order also property of Saqlain Seikh is mentioned in the west direction. Thus there is no any ambiguity with respect to the boundary.

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Third Plea of the applicant no. 3 in the I.A. No. 617/2026 is that any officer subordinate to the Ld. CJM has not been authorized to take physical possession of the properties.

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From perusal of the impugned order dated 01.04.2026 it transpires that Ld. CJM has appointed advocate Debashish Kundu to take physical possession of the property and in case of NKGSB Co-operative Bank Ltd. vs Subir Chakraborty & Ors (2022 Livelaw SC 2012 ) Hon’ble the Supreme Court has held that the ‘Advocate’ being officer of the court can be appointed by the CMM/DM for taking physical possession of the secured asset u/s 14 of the SARFAESI Act.

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Last plea of the applicant No. 3 is that impugned order has not been passed in due compliance of the provisions of the SARFAESI Act and thus same is illegal, unlawful and bad in law and requires to be set aside.

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As per section 14(1) of the SARFAESI Act when the possession of any secured asset is required to be taken by the secured creditor, the secured creditor may, for the purpose of taking possession or control of any such required asset, request in writing to the Chief Metropolitan Magistrate or the District Magistrate under whose jurisdiction such secured asset is situated. On receipt of the application with affidavit from the authorized officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after

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RAKESH Digitally signed by RAKESH PATI PATI TIWARI Date: 2026.09.15 TIWARI 17:22:53 +05'30'

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satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured asset.

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From perusal of the order of Ld. C.J.M it transpires that after satisfying with the statutory requirements impugned order has been passed. Relevant portion of the order (para 2 & 3 of page no. 3 of the order) is extracted here-in-below:

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“From the petition as well as the affidavit submitted as per requirement of the SAREAESI Act the property (secured asset) is an immovable property described as: "ALL THAT piece and parcel of land measuring 7.00 decimals (3049 sq.ft) with structure lying and situated under Mouza - Bundalnagar, J.L. No. 16, Touzi No. 18. R.S. & L.R. Dag No 16, LR Khatiyan 1427 corresponding to 8222, P.S. Nowda, P.O. - Trimohlnl, Ramchandrepur, Dist- Murshidabad, PIN - 742175, which is butted and bounded by; On the North: 12 Ft. Wide Panchayet Road, On the South: Property of Ramjan Mondal, On the East: Property of Nurul Master and On the West: Property of Saqlain Sk, as described in Deed No. I-2025 of 2022". The description is same in security agreement and the title documents submitted by the opposite parties. It is also within territorial jurisdiction of this court. It is stated try be In the name of opposite party no. 1 & 2. The original title documents in respect of the said property are with the petitioner thereby creating an equitable mortgage and the property is not the one hit by other clauses of Section 31 of the SARFAESI Act. Sixtydays notice has been given u/s. 13(2) of SARFAESI Act giving details of outstanding amount and details of secured asset, along with postal documents and the newspaper publication. The petitioner has stated that no objection have been received from anyone and that the borrower has failed to repay the outstanding in full. As all such requirement being fulfilled it becomes mandatory for the undersigned being the Chief Judicial Magistrate under whom the property is situated. In order taking possession of the asset mortgage with the petitioner and the documents relating there to and forward the same to the secured creditor. As per section 14 of the SARFAESI Act the court may take or cause to be taken such steps as use of cost to be used such force as may be necessary.”

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Before discussing the merit of I.A. No. 619/2026 filed by the applicant no. 1 & 2 it is made clear that the points which have already been dealt with would not be discussed again with a view to avoid repetition.

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First plea of the applicants in I.A. No. 619/2026 is that mechanically the Ld. CJM has passed the order. But from perusal of the impugned order it transpires that after recording his satisfaction order has been passed by the Ld. CJM.

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RAKESH Digitally signed by RAKESH PATI PATI TIWARI Date: 2026.09.15 TIWARI 17:23:04 +05'30'

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Next plea is that directly the secured creditor can not be authorized to take physical possession. But instead of going through the one line of the order (order portion at page no. 3) the entire order has to be taken into account wherein at page no. 4 of the order Ld. Advocate Debashish Kundu has been appointed to take physical possession of the property.

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Third plea in the I.A. No. 619/2026 is that the Ld. C.J.M possesses only the administrative power and not vested with any judicial power while passing order u/s 14 of the SARFAESI Act. While raising this plea it has not been specifically pleaded that where the Ld. CJM has exceeded its jurisdiction and utilized the judicial powers.

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In case of Balkrishna Rama Tarle Dead Thr LRS & Anr Vs. Phoenix ARC Private Limited & Ors (reported in (2022) SCC online SC 1299 ), the Hon’ble Supreme Court has held that passing the order under section 14 of the SARFAESI Act is merely a ministerial work. Relevant portion is extracted here-in-below :-

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“Thus, the powers exercisable by CMM/DM under Section 14 of the SARFAESI Act are ministerial step and Section 14 does not involve any adjudicatory process qua points raised by the borrowers against the secured creditor taking possession of the secured assets. In that view of the matter once all the requirements under Section 14 of the SARFAESI Act are complied with/satisfied by the secured creditor, it is the duty cast upon the CMM/DM to assist the secured creditor in obtaining the possession as well as the documents related to the secured assets even with the help of any officer subordinate to him and/or with the help of an advocate appointed as Advocate Commissioner. At that stage, the CMM/DM is not required to adjudicate the dispute between the borrower and the secured creditor and/or between any other third party and the secured creditor with respect to the secured assets and the aggrieved party to be relegated to raise objections in the proceedings under Section 17 of the SARFAESI Act, before Debts Recovery Tribunal. ……………..”

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Lastly plea of excessive delegation of powers by the Ld. C.J.M has been raised but from perusal of the impugned order it transpires that in view of section 14(1A) of the SARFAESI Act and sub-section (2) of Section 14 of the SARFAESI Act authorization has been made to the Ld. Advocate Debashish Kundu to take physical possession of the property and hand it over to the secured creditor.

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In view of the discussions made here-in-above in foregoing paragraphs this Tribunal comes to the conclusion that the impugned order dated 01.04.2026 passed by the Ld. C.J.M Murshidabad is proper, legal & valid in view of the provisions of the SARFAESI Act and it

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RAKESH Digitally signed by RAKESH PATI PATI TIWARI Date: 2026.09.15 TIWARI 17:23:16 +05'30'

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requires no interference and thus both the I.A’s bearing no. 617/2026 & 619/2026 of the applicants are hereby rejected .

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ORDER ON SA

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Case of the applicants in short is that the Applicant Nos. 1 and 3 are engaged in a hardware business under the name and style of AR Traders at Trimohini, Murshidabad. They availed a Home Equity Loan of Rs.17,00,000/- from the respondent financial company on 31.12.2023 by mortgaging the scheduled property, repayable in monthly instalments of Rs.25,563/- for 180 months, and claim to have regularly paid 11 instalments, amounting to Rs.2,81,193/- in total. According to the applicants, owing to a serious illness of Applicant No. 1’s father and consequent financial difficulties in the business, certain instalment defaults occurred, following which the respondent initiated a criminal complaint under Sections 318(4)/316(2)/61(2)/3(5) BNS, being Case No. CS/373079/2025, in which the applicants appeared and were granted bail. Thereafter, the respondent issued a possession notice dated 24.01.2026 under Section 13(4) of the SARFAESI Act read with Rule 8 of the Security Interest (Enforcement) Rules, 2002, claiming an outstanding amount of Rs.20,45,316/- as on 10.11.2025, followed by a similar notice dated 30.01.2026 and publication in the newspaper Aajkal on 28.01.2026 regarding symbolic possession. The applicants contend that the respondent’s action is illegal, irregular and contrary to the prescribed procedure under the SARFAESI Act, particularly as the respondent had already initiated criminal proceedings for recovery of the alleged dues, and that the respondent cannot pursue parallel remedies for the same cause. They further contend that the defaults were neither wilful nor deliberate, that substantial payments had already been made, and that they require reasonable breathing time to regularise the account. On such grounds, the applicants assert a strong prima facie case and seek appropriate interim protection against the coercive measures initiated by the respondent.

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The respondents filed their written objection stating inter-alia that the application is barred by the principle of waiver, estoppels and acquiescence. Further, the applicants have no locus-standi to file the instant application. The contention of the respondent bank is that through the notice issued under section 13(2) of the SARFAESI Act, 2002, on 10.11.2025, the Applicants were duly informed that the loan account of the applicant had been classified as NPA on 03.11.2025. It has been contended by the respondents that the 13(2) notice dated 10.11.2025 included an explicit breakdown and quantification of the debts comprising the demanded amount, fully aligning with the requirements

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RAKESH Digitally signed by RAKESH PATI PATI TIWARI Date: 2026.09.15 TIWARI 17:23:28 +05'30'

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stipulated in Section 13(3) of the SARFAESI Act. Further contention of the respondents is that following the expiration of the statutory period of 60 days, the respondent bank proceeded with the enforcement procedures as outlined in the SARFAESI Act of 2002 and only after the completion of these proper and legally mandated procedures, the respondent bank took the definitive step of issuing the 'Possession Notice' on 24.01.2026 and the respondent bank published the said possession notice on 28.01.2026 in two widely circulated newspapers "Indian Express" in English and "Aajkal" in the vernacular language and affixed the possession notice at a conspicuous outer part of the mortgage property. According to the respondents the measures are carried out in strict accordance with the established legal frameworks, and they reflect the bank’s unwavering commitment in upholding the principles of fairness, legality and due process.

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Ld. Counsels of the parties have been heard on SA also.

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Applicants have admitted the sanction of the loan amount of Rs. 17,00,000/- in their favour and Rs. 25,563/- was the EMI payable in 180 months. Their case is that till 11^th installment payment was regular but thereafter became irregular and one complaint case was also filed against them by the secured creditor. Their further plea is that father of applicant no. 1 became seriously ill.

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First plea of the applicants is that as the respondents had already initiated proceedings before the Judicial Magistrate and thus second forum of recovery is not maintainable.

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It is pertinent to mention that there is no question of election because proceeding before the Judicial Magistrate is a criminal proceeding and the SARFAESI measures have been initiated for the recovery of dues and both the proceedings can run simultaneously.

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Next plea of the applicant is that considering the intention of the borrower to make payment of 11 instalments some breathing time ought to be given by the respondents. But for that 13(2) notice was given to repay the dues within 60 days and when entire payment has not been made, the respondent bank has rightly proceeded under the SARFAESI Act.

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Service of 13(4) notice as well as its publication in newspaper has been admitted.

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In view of the discussions made here-in-above in foregoing paragraphs S.A. filed by the applicants have got no merit in the eye of law and/or fact and accordingly, dismissed and both the I.As have already been rejected.

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