HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP (C) No. 780/2024

CM No. 2034/2024

CM No. 2394/2024

Dated: 9

th

of July, 2025.

1. Mst. Sundri, Age: 70 Years

W/O Late Abdul Aziz Sofi

2. Mohd. Yousuf Sofi, Age: 50 Years

3. Mst. Maryam, Age: 46 Years

4. Mohd. Latief Sofi, Age: 43 Years

5. Mst. Yasmeena, Age: 40 Years

6. Mudassir Ahmad Sofi, Age: 36 Years

7. Mst. Afroza, Age: 34 Years

Petitioner Nos. 2, 4 & 6 Sons of Late Abdul Aziz Sofi

Petitioner Nos. 3, 5 & 7 Daughters of Late Abdul Aziz Sofi

All Residents of Firdous Abad, Batamaloo, Srinagar.

… Petitioner(s)

Through: -

Mr Shakir Haqani, Advocate with

Mr Asif Ahmad Wani, Advocate.

V/s

1. The Jammu & Kashmir Bank Ltd.,

Through its Authorized Officer Hakeem Ashiq Hussain Qureshi at

M. A. Road, Srinagar.

2. Nazir Ahmad Sofi

S/o Late Abdul Aziz Sofi

R/o Firdous Abad, Batamalloo, Srinagar.

… Respondent(s)

Through: -

Mr Adil Asmi, Advocate for R-1.

WP (C) No.780/2024

CM No. 2034/2024; CM No. 2394/2024

Page 2 of 7

CORAM:

Hon’ble Mr Justice Sanjeev Kumar, Judge.

Hon’ble Mr Justice Sanjay Parihar, Judge.

(JUDGMENT)

Sanjeev Kumar-J:

01. In this Petition, filed under Article 226 of the Constitution of

India, the Petitioners seek to challenge an Order dated 22

nd

of February,

2024 passed by the learned Chief Judicial Magistrate, Srinagar in an

application moved by the Respondent-Bank under Section 14 of the

Securitization and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002 (“the Act of 2002”).

02. The impugned Order has been assailed by the Petitioners,

primarily, on the ground that the application which was filed by the

Respondent-Bank purportedly under Section 14 of the Act of 2002 was

against a dead person and, therefore, not maintainable.

03. Learned Counsel for the Petitioners submits that one of the

original borrowers, namely, Abdul Aziz Sofi passed away on 24

th

of July,

2023, whereas, the application under Section 14 of the Act of 2002 was

filed on 18

th

of December, 2023.

04. It is the sole ground on which the impugned Order passed by

the learned Chief Judicial Magistrate has been assailed.

05. Per contra, learned Counsel appearing for the Respondent-

Bank would submit that there is no requirement under Section 14 of the Act

of 2002 to issue notice to the borrower or the guarantor as the proceedings

under Section 14 of the Act of 2002 are, in fact, directed against the secured

asset(s). He submits that notice under Section 13 (2) of the Act of 2002 was

issued to the deceased borrower on 7

th

of March, 2023 during his lifetime

and he had almost more than three months to respond to the said notice.

WP (C) No.780/2024

CM No. 2034/2024; CM No. 2394/2024

Page 3 of 7

06. Having heard learned Counsel for the parties and perused the

material on record, we are of the considered opinion that the only notice to

which a borrower is entitled to is a notice under Section 13 (2) of the Act of

2002, whereby the borrower is called upon by a notice in writing to

discharge in full the liability to the secured creditor within a period of sixty

(60) days. In the instant case, admittedly, the deceased borrower-Late

Abdul Aziz Sofi or, for that matter, the other co-borrower-Nazir Ahmad

Sofi did not discharge their liability towards the Respondent-Bank despite

having been served with a notice under Section 13 (2) of the Act of 2002. In

such a situation, the Respondent-Bank was left with no option but to

proceed either under sub-section (4) of Section 13 or Section 14 of the Act

of 2002. The Respondent-Bank, in its wisdom, choose to proceed under

Section 14 of the Act of 2002 and, accordingly, made an application before

the Chief Judicial Magistrate.

07. Before we proceed further, we deem it proper to set out

Section 14 of the Act of 2002 hereinbelow;

“14. Chief Metropolitan Magistrate or District

Magistrate to assist secured creditor in taking possession

of secured asset.—(1) Where the possession of any secured

assets is required to be taken by the secured creditor or if any

of the secured assets is required to be sold or transferred by

the secured creditor under the provisions of this Act, the

secured creditor may, for the purpose of taking possession or

control of any such secured assets, request, in writing, the

Chief Metropolitan Magistrate or the District Magistrate

within whose jurisdiction any such secured asset or other

documents relating thereto may be situated or found, to take

possession thereof, and the Chief Metropolitan Magistrate or,

as the case may be, the District Magistrate shall, on such

request being made to him—

(a) take possession of such asset and documents

relating thereto; and

(b) forward such asset and documents to the secured

creditor:

WP (C) No.780/2024

CM No. 2034/2024; CM No. 2394/2024

Page 4 of 7

[Provided that any application by the secured creditor

shall be accompanied by an affidavit duly affirmed by the

authorized officer of the secured creditor, declaring that—

(i) the aggregate amount of financial assistance granted

and the total claim of the Bank as on the date of filing the

application;

(ii) the borrower has created security interest over

various properties and that the Bank or Financial Institution is

holding a valid and subsisting security interest over such

properties and the claim of the Bank or Financial Institution is

within the limitation period;

(iii) the borrower has created security interest over

various properties giving the details of properties referred to

in sub-clause (ii)above;

(iv) the borrower has committed default in repayment

of the financial assistance granted aggregating the specified

amount;

(v) consequent upon such default in repayment of the

financial assistance the account of the borrower has been

classified as a non-performing asset;

(vi) affirming that the period of sixty days’ notice as

required by the provisions of sub-section (2) of section 13,

demanding payment of the defaulted financial assistance has

been served on the borrower;

(vii) the objection or representation in reply to the

notice received from the borrower has been considered by the

secured creditor and reasons for non-acceptance of such

objection or representation had been communicated to the

borrower;

(viii) the borrower has not made any repayment of the

financial assistance in spite of the above notice and the

Authorized Officer is, therefore, entitled to take possession of

the secured assets under the provisions of sub-section (4) of

section 13 read with section 14 of the principal Act;

(ix) that the provisions of this Act and the rules made

thereunder had been complied with:

WP (C) No.780/2024

CM No. 2034/2024; CM No. 2394/2024

Page 5 of 7

Provided further that on receipt of the affidavit from

the Authorized Officer, the District Magistrate or the Chief

Metropolitan Magistrate, as the case may be, shall after

satisfying the contents of the affidavit pass suitable orders for

the purpose of taking possession of the secured assets [within

a period of thirty days from the date of application]:

[Provided also that if no order is passed by the Chief

Metropolitan Magistrate or District Magistrate within the said

period of thirty days for reasons beyond his control, he may,

after recording reasons in writing for the same, pass the order

within such further period but not exceeding in aggregate

sixty days.]

Provided also that the requirement of filing affidavit

stated in the first proviso shall not apply to proceeding

pending before any District Magistrate or the Chief

Metropolitan Magistrate, as the case may be, on the date of

commencement of this Act.]

[(1A) The District Magistrate or the Chief

Metropolitan Magistrate may authorize any officer

subordinate to him—

(i) to take possession of such assets and documents

relating thereto; and

(ii) to forward such assets and documents to the

secured creditor.]

(2) For the purpose of securing compliance with the

provisions of sub-section (1), the Chief Metropolitan

Magistrate or the District Magistrate may take or cause to be

taken such steps and use, or cause to be used, such force, as

may, in his opinion, be necessary.

(3) No act of the Chief Metropolitan Magistrate or the

District Magistrate [any officer authorized by the Chief

Metropolitan Magistrate or District Magistrate] done in

pursuance of this section shall be called in question in any

court or before any authority.”

08. From reading of Section 14 of the Act of 2002, it is crystal

clear that Section 14 is invoked by the secured creditor only where the

possession of the secured asset(s) is required to be taken. The application

WP (C) No.780/2024

CM No. 2034/2024; CM No. 2394/2024

Page 6 of 7

which is required to be moved by the secured creditor must be accompanied

by an affidavit duly affirmed by the Authorized Officer of the secured

creditor declaring, inter alia, that a notice under Section 13 (2) of the Act,

2002 demanding payment stood served on the borrower. From further

reading of Section 14 of the Act of 2002, it also becomes crystal clear that

Section 14 is to be invoked after the borrower has failed to discharge in full

his liability to the secured creditor within a period of sixty (60) days despite

having been served with a notice under Section 13 (2) of the Act of 2002. In

the instant case, the notice under Section 13 (2) stood served to the

borrowers and, on their failure to discharge the liability in full to the

secured creditor within the stipulated period of sixty (60) days, the

Respondent-Bank invoked Section 14 of the Act of 2002 and made an

application seeking order from the Chief Judicial Magistrate to take over

the physical possession of the secured asset(s).

09. Having regard to the clear position emerging from Sections 13

and 14 of the Act of 2002, we are not persuaded to agree with the

contention of the learned Counsel for the Petitioners that before invoking

Section 14 of the Act of 2002, the secured creditor should have issued fresh

notice to the legal heirs of the borrower so as to provide them an

opportunity to pay the dues in full. Otherwise also, such an argument

cannot be accepted for the reason that despite lapse of about two years, the

Petitioners have not discharged in full the liability towards the Respondent-

Bank. Assuming for the sake of arguments that the Petitioners were also

required to be given a fresh notice under Section 13 (2) of the Act of 2002,

then the necessary consequence of fresh notice would have been to call

upon the legal heirs to deposit the amount in full within sixty (60) days. Is it

the case of the Petitioners that they had the money and were ready and

willing to discharge their liability within sixty (60) days, but because they

were not given any notice they were deprived of depositing the amount

before the Respondent-Bank.

WP (C) No.780/2024

CM No. 2034/2024; CM No. 2394/2024

Page 7 of 7

10. Viewed from any angle, the arguments raised by the learned

Counsel for the Petitioners are misconceived and, consequently, the Writ

Petition filed by the Petitioners is held to be without any merit. The same is,

accordingly, dismissed, along with the connected CM(s). Interim

direction(s), if any subsisting as on date, shall stand vacated. We, however,

observe that in case any One Time Settlement (OTS) Scheme is in vogue,

as on date, and the Petitioners approach the Respondent-Bank with a fresh

application along with the pre-requisite deposits, then the same shall be

considered by the Bank strictly as per the terms of such Scheme.

(Sanjay Parihar) (Sanjeev Kumar)

Judge Judge

SRINAGAR

July 9

th

, 2025

“TAHIR”

i. Whether the Judgment is approved for reporting? Yes.