SARFAESI Section 17 Remedies for Non-Borrower Occupants After 2016 Amendment

Standing without a remedy: “Any Person” Under Section 17 of the SARFAESI Act, and What the Debts Recovery Tribunal Can Actually Do for an occupant who is not the borrower

Summary: This article examines the scope of the remedy available to a non-borrower occupant under Section 17 of the SARFAESI Act, 2002, focusing on the position of a wife in a matrimonial home, tenant, legal heir or other occupant affected by measures under Section 13(4). Using Meenakshi Goel v. HDFC Bank Ltd., Misc. Appeal No. 66 of 2026 before DRAT Delhi, as the immediate illustration, it argues that Section 17(1)’s reference to “any person” confers standing beyond borrowers and that the 2016 substitution of Section 17(3) expressly empowered the DRT to restore possession not only to the borrower but also to “such other aggrieved person”. The article distinguishes the pre-2016 reasoning considered in Central Bank of India v. Smt. Prabha Jain, 2025 INSC 95, and discusses the legislative response to Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd. through Section 17(3) and Section 17(4A). It also examines the closure of alternative forums through Section 14, Section 34 and the principles governing writ jurisdiction, including Balkrishna Rama Tarle v. Phoenix ARC. The practical portion addresses forum selection, the forty-five-day period under Section 17(1), limitation arguments for non-borrowers, pleading strategy, compliance with the Security Interest (Enforcement) Rules, 2002, scrutiny of the affidavit under the proviso to Section 14(1), interim protection, final remedies under Sections 17(3) and 19, and waiver of the Section 18 pre-deposit for independent third parties. The article concludes that a non-borrower occupant does not necessarily defeat a valid security interest, but the DRT has jurisdiction to examine whether the creditor’s measures complied with the Act and Rules and, where statutorily justified, preserve or restore possession or mould appropriate relief.

Introduction

A recurring pattern has settled into SARFAESI practice, and it deserves closer attention than it has received. A person who is not the borrower — a wife in the matrimonial home, a tenant, a legal heir, a family member left in occupation — approaches the Debts Recovery Tribunal under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 when the receiver arrives at the door. The Tribunal admits her at the threshold, holding correctly that she is a “person aggrieved” within Section 17(1). It then dismisses her on the merits, reasoning that it has no jurisdiction to decide the rights of anyone other than the borrower. She is handed a key and shown a locked door.

The recent order of the Debts Recovery Appellate Tribunal at Delhi in Meenakshi Goel v. HDFC Bank Ltd., Misc. Appeal No. 66 of 2026, is a clean illustration. The question it provokes is the one every practitioner who has argued for an occupant eventually asks: if the Tribunal is not empowered to protect a person other than the borrower, why did Parliament write “any person” into Section 17(1) at all?

This article argues that Parliament answered that question twice — once in 2002 by conferring standing, and again in 2016 by conferring the remedial power to match it — and that a substantial body of current orders is being decided on a version of Section 17 that was repealed a decade ago. It then turns to the practical half of the problem, which is where most of these applications are actually lost: how a non-borrower applicant should frame, file, plead, time and prosecute a securitisation application, what reliefs the Tribunal can genuinely grant, and what to do at the appellate stage.

The order that frames the question

The facts in Meenakshi Goel are worth setting out, because they are typical. The appellant married the second respondent in 1999 and resided with her three daughters in property owned by her father-in-law at East Punjabi Bagh, New Delhi. A partnership firm of her husband and father-in-law had availed a facility of ₹7.5 crore from HDFC Bank in September 2019 and had mortgaged that property as collateral. On default, the Bank issued a demand notice under Section 13(2) in February 2024 and affixed notices under Section 13(4) in May and November 2024. The appellant, who had obtained an order dated 18.09.2024 from the Mahila Court, Tis Hazari under Section 12 of the Protection of Women from Domestic Violence Act, 2005 and an order dated 28.09.2024 from a Civil Judge, both restraining her husband and father-in-law from dispossessing her, filed a securitisation application before DRT-2, Delhi. A receiver appointed under Section 14(2) issued a possession notice. A Link Officer granted interim protection on 28.11.2025; DRT-2 dismissed the interim application on merits on 17.04.2026; and the appeal followed.

The Appellate Tribunal first allowed waiver of pre-deposit under Section 18, holding, on the authority of the Delhi High Court in Manju Devi v. RBL Bank Ltd., W.P.(C) No. 11766 of 2016, decided on 01.02.2017, that the mandatory pre-deposit does not apply to an independent third party who has not obtained finance from the institution. That much is unexceptionable and important, and I return to it below.

On locus, at paragraph 13, the Tribunal held that the appellant, being in physical possession and claiming to be affected by measures under Section 13(4), was a “person aggrieved” within Section 17(1) and had standing. At paragraph 14 it held that her injunctions bound her husband and father-in-law but not the Bank, and that the security interest could not be displaced by the Domestic Violence Act. At paragraph 15 it held that the Link Officer’s order was ad-interim only, so DRT-2 had not overreached. At paragraph 16 it accepted that the two statutes operate independently but concluded that the creditor’s rights could not be defeated by the 2005 Act and endorsed the DRT’s view that it could not adjudicate her right of residence. At paragraph 17 it rejected the plea that the Bank should proceed against other securities first, holding that a third party cannot dictate recovery modalities. At paragraph 18 the appeal was dismissed.

Read as a whole, the order accepts that she may knock and holds that nothing lies behind the door. That conclusion, I suggest with respect, cannot survive the text of the amended Act.

What Parliament actually wrote

Section 17(1) confers the remedy on “any person (including borrower)” aggrieved by any of the measures referred to in Section 13(4). The legislature did not write “the borrower”. Legislature did not write “the borrower or the guarantor”. They used the widest formulation available and then added a parenthesis clarifying that the borrower is one instance of a larger class, not the class itself. Reducing “any person” to “the borrower” makes the parenthesis meaningless, which the rule against surplusage forbids.

The textual argument, however, does not rest on the opening words alone, and here lies a point that appears to have gone almost entirely unnoticed in the reported decisions and in the commentary. The proviso to Section 17(1) enacts that different fees may be prescribed for making the application by the borrower and by “the person other than the borrower”. Parliament did not merely contemplate that non-borrowers would apply. It authorised a separate scale of court fees for them. A legislature that fixes the price of the non-borrower’s application has necessarily decided that the non-borrower has an application to make. One does not charge admission to a room one intends to keep locked.

The Explanation to Section 17(1) speaks in the same register — “the person (including borrower)”. Section 18 opens the appellate remedy to “any person aggrieved by any order made by the Tribunal”. The architecture is consistent from first instance to appeal.

These words have survived three legislative moments. They were in the Act as enacted in 2002. They survived the wholesale recasting of Section 17 by the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004, which converted the “appeal” into an “application” and inserted sub-sections (2) to (7). They survived the recasting again by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016. Three Parliaments have looked at that phrase and left it standing.

The Supreme Court has said as much. In Jagdish Singh v. Heeralal, (2014) 1 SCC 479, the Court held at paragraph 19 that “any person” in Section 17 is of wide import and takes in not only the borrower but the guarantor and any other person who may be affected by action under Section 13(4), and at paragraph 20 that a remedy is provided under Section 17 to such persons where the creditor adopts any measure against secured assets in which they claim an interest. The Court drew support from United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110. Earlier, in Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366, the Court had held that the Tribunal’s jurisdiction under Section 17 extends to examining not merely the initiation of measures, but the steps taken after Section 13(4), and to restoring the status quo ante.

Three doors, and which of them are shut

If the words are that wide, why has the practice narrowed? Partly because a great deal of judicial energy over the last decade has gone into shutting the other doors, and the closing of those doors has been mistaken for a statement about this one.

Consider where else an occupant might go. The Chief Metropolitan Magistrate or District Magistrate acting under Section 14 is out of the question. In Balkrishna Rama Tarle (Dead) through LRs v. Phoenix ARC (P) Ltd., (2023) 1 SCC 662 : 2022 SCC OnLine SC 1299, decided on 26.09.2022, the Supreme Court affirmed the Bombay High Court and held that the Magistrate’s function is ministerial, involves no adjudicatory process, and specifically does not extend to adjudicating disputes between the borrower and the secured creditor or between any other third party and the secured creditor with respect to the secured asset — the aggrieved party being relegated to raise objections under Section 17 before the Tribunal. The same position emerges from NKGSB Co-operative Bank Ltd. v. Subir Chakravarty, (2022) 10 SCC 286: (2023) 1 SCC (Cri) 157, and R.D. Jain & Co. v. Capital First Ltd., (2023) 1 SCC 675. Much earlier, in Kanaiyalal Lalchand Sachdev v. State of Maharashtra, (2011) 2 SCC 782, the Court had held that a person aggrieved by an order under Section 14 must take the Section 17 route.

The civil court is barred, at least as regards the measures themselves. Section 34 ousts civil jurisdiction over any matter the Tribunal is empowered to determine, and Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311, held at paragraph 50 that the bar extends even to matters of which the Tribunal could take cognizance, subject only to the narrow exception at paragraph 51 for fraud or a claim so absurd as to require no probe. Jagdish Singh applied the bar at paragraphs 24 and 25. State Bank of Patiala v. Mukesh Jain, (2017) 1 SCC 53, restated it at paragraphs 16 and 17. Electrosteel Castings Ltd. v. UV Asset Reconstruction Co. Ltd., (2022) 2 SCC 573, made clear that bare allegations of fraud, without particulars, will not open the civil court’s door.

The writ court will not entertain her either. From Satyawati Tondon (supra), through Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345, Varimadugu Obi Reddy v. B. Sreenivasulu, (2023) 2 SCC 168 down to PNB Housing Finance Ltd. v. Manoj Saha, 2025 INSC 847, decided on 15.07.2025, the High Courts have been told repeatedly to send SARFAESI grievances — including those of occupants who are not borrowers — back to the statutory forum.

Three doors. Two are firmly shut and the third is the Tribunal. If the Tribunal then says it has no power over a non-borrower, the result is not a narrow jurisdictional holding. It is a person losing her home to a State-assisted eviction with no forum anywhere in the country competent to ask whether the eviction was lawful. That is not a construction of a remedial statute; it is the abolition of a remedy by inference. Ubi jus ibi remedium is not a decorative maxim, and where the subject matter is shelter, Article 21 is not far away. It bears remembering that the constitutional validity of the Act was itself upheld in Mardia Chemicals partly on the footing that Section 17 furnishes an efficacious remedy to the aggrieved.

What Prabha Jain actually decided — and what it did not

The judgment most often cited against the third-party applicant is Central Bank of India v. Smt. Prabha Jain, 2025 INSC 95 : (2025) 2 SCR 263, decided on 09.01.2025 It is being read, with respect, far too broadly.

Prabha Jain claimed a one-third share by inheritance. Her brother-in-law divided the land without partition and sold a plot; the purchaser mortgaged it to the Bank. She sued in the civil court for declarations that the sale deed and the mortgage deed were void, and for possession. The Bank invoked Section 34. The Court held the suit was not barred, because the Tribunal could not grant those declarations. That is the holding, and it is a holding about title, not about possession. At paragraphs 16 to 18 the Court reasoned that the first two reliefs did not relate to any measure taken under Section 13(4) but to transactions antecedent to the creditor’s entry, that the Act was not enacted to adjudicate the validity of documents or determine questions of title, and that such declarations lie with the civil court under Section 9 of the Code of Civil Procedure, 1908. The illustrations at paragraph 19 — competing wills, a disputed adoption — confirm the point: the Court was concerned with civil disputes of title between a stranger and a borrower.

Two passages are then relied upon against occupants generally, and both need to be read with care.

At paragraph 23(I)(1), dealing with the pre-2016 text, the Court observed that while Section 17(1) uses “any person (including the borrower) aggrieved”, the unamended Section 17(3) did not expressly empower the Tribunal to restore possession to anyone other than the borrower. The Court did not stop there. It went on to say that where the borrower has put some other person in possession, it could well be contended that the power to restore possession to the “borrower” includes the power to restore it to the person holding on behalf of, or claiming through, the borrower. What the Tribunal cannot do, the Court said, is hand over possession to one whose claim is adverse to the borrower.

At paragraph 23(I)(2), the Court fastened on the word “restore” as against “hand over” and held that the power is to return possession to the person who was in possession when the creditor took over possession.

Put those together and the ratio is considerably narrower than its reputation. The claimant who fails is the one who both claims adversely to the borrower and was not in possession when the creditor took over. Prabha Jain failed on both counts, as paragraph 23(II) records in terms. But an occupant who was put into the premises by the borrower, whose claim is not adverse to the borrower’s title, and who was in actual possession on the date of the creditor’s measure, attracts neither disqualification. On the Supreme Court’s own reasoning she is within the Tribunal’s restorative power, not outside it.

A wife in a shared household is close to the paradigm case. She does not say the mortgagor had no title; she says she lives there because he did. Her claim runs through the borrower’s ownership, not against it. So, generally, does that of a tenant inducted by the borrower, or of a legal heir in possession of the estate.

Two further points about Prabha Jain deserve emphasis. At paragraph 28, the Court observed that although Jagdish Singh was right that “any person” is wide enough to cover anyone affected by action under Section 13(4), that judgment had overlooked that the Tribunal’s powers are confined to the measures under Section 13(4) and had missed the significance of the word “restore” in Section 17(3). That is a comment on the scope of relief, not on standing. And at paragraph 34, while discussing Madhav Prasad Aggarwal v. Axis Bank Ltd., (2019) 7 SCC 158, the Court expressly recorded that the question of the Tribunal’s competence to decide matters outside the scope of Section 17 had been left open and requires finality. The field is not closed.

The 2016 amendment that most orders are not applying

There is a more fundamental difficulty with reading Prabha Jain as a general bar. The suit there was of 2011, and the Court said at paragraph 22 in terms that it was construing Section 17 “as it stood prior to the 2016 amendment”. The entire “restore versus hand over” discussion is an exposition of a text that has since been replaced.

Section 17(3), as substituted by the Amendment Act of 2016, now provides that where the Tribunal concludes that the measures were not in accordance with the Act and the Rules, and restoration of management or possession to “the borrower or other aggrieved person” is required, it may by order —

1. declare the recourse to any one or more measures referred to in Section 13(4) as invalid; and
2. restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1); and
3. pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under Section 13(4).

The Supreme Court itself set that amended text out at paragraph 23(V) of Prabha Jain and recorded that the expression “or such other aggrieved person” has been inserted after “borrower”. And at paragraph 38 it explained why. When Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd., (2014) 6 SCC 1, held that a lessee could not obtain repossession from the Tribunal because repossession could be only in favour of the borrower, Parliament stepped in and amended the Act.

That is a remarkable sentence to find in a judgment now routinely cited to deny relief to non-borrowers. The precise defect — standing under sub-section (1) with no corresponding remedial power under sub-section (3) — was identified by the Supreme Court in 2014 and legislatively cured in 2016. Parliament’s answer to “why did you write ‘any person’?” was to write it again, this time into the operative remedial provision.

Alongside it came Section 17(4A), which provides that where any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Tribunal shall, after examining the facts of the case and the evidence produced by the parties, have jurisdiction to examine whether the lease or tenancy has expired or stood determined, is contrary to Section 65A of the Transfer of Property Act, 1882, is contrary to the terms of the mortgage, or was created after the issuance of the notice under Section 13(2); and if satisfied that the claim falls within any of those categories, may pass such order as it deems fit notwithstanding anything to the contrary in any other law.

Whatever else Section 17(4A) does, it demolishes the proposition that the Tribunal is constitutionally incapable of adjudicating a possessory claim by someone who is not the borrower. It does exactly that, by statutory command. It also shows that where Parliament wanted to fence the enquiry it knew how to specify the fence — and it specified none for an occupant asserting a statutory right of residence.

The Supreme Court has since applied that architecture. In PNB Housing Finance Ltd. v. Manoj Saha (supra), the Court set aside a Calcutta High Court order that had restored possession to a tenant, expressly distinguishing Harshad Govardhan Sondagar as a pre-amendment decision and holding that Section 17(4A) read with Section 18 now provides a comprehensive remedy — which is why the High Court ought not to have intervened under Article 227. The premise of that reasoning is that the Tribunal can decide the tenant’s claim. The same premise governs any other occupant.

An order which reasons that the Tribunal “has no jurisdiction” over a non-borrower occupant is therefore applying a version of Section 17 that Parliament repealed a decade ago.

The domestic violence argument is being pleaded backwards

There is a further reason why these applications keep failing, and it lies on the applicant’s side of the record.

The argument almost invariably advanced is that the Protection of Women from Domestic Violence Act, 2005 is social welfare legislation; that Vishal N. Kalsaria v. Bank of India, (2016) 3 SCC 762, holds that the SARFAESI Act cannot be used to bulldoze such protections; and that the right of residence must therefore prevail over the security interest. Put that way, the argument loses, and it deserves to. It asks the Tribunal to subordinate a prior security interest to a personal right that arose later, and it walks straight into Darly Shajan v. Shajan Thomas, W.P.(C) No. 27669 of 2025 (Kerala High Court), and Ammini Peter v. Union of India, W.P.(C) No. 36347 of 2025(P) (Kerala High Court), on which the Bank succeeded in Meenakshi Goel. It also invites precisely the answer given at paragraph 16 of that order: the two statutes operate in independent fields, and the creditor’s rights are not displaced by the occupant’s.

Look again at what Section 17(2) of the 2005 Act says. The aggrieved woman “shall not be evicted or excluded from the shared household save in accordance with the procedure established by law”. That is not an immunity from process. It is a right to insist on process. The Delhi High Court has recently put the point in terms, holding that Section 17 of the 2005 Act confers a right of residence simpliciter, protects against eviction otherwise than by due process of law, and creates or enlarges no proprietary interest in favour of the woman. The Supreme Court’s expansive readings in Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414, and Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90, are readings of the content of a residence right, not conversions of it into a proprietary one.

Once that is grasped, the pleading turns around. The occupant is not asking the Tribunal to hold that the 2005 Act beats the SARFAESI Act. She is asking it to hold that where dispossession is effected under the SARFAESI Act, the “procedure established by law” contemplated by Section 17(2) of the 2005 Act is the procedure in Sections 13 and 14 and the Security Interest (Enforcement) Rules, 2002 — and that the only forum empowered to test whether that procedure was followed is the Tribunal itself, under Section 17(2) of the SARFAESI Act. Section 35 gives the SARFAESI Act overriding effect only over what is inconsistent with it, and Section 37 expressly preserves the rest. On this framing there is no inconsistency to resolve, because the occupant is asserting no competing right at all. She is asserting the creditor’s own statute against the creditor.

The same reframing works, mutatis mutandis, for a tenant, a legal heir or any other occupant. The question is never “is my right bigger than the mortgage?” It is always “were the measures taken in accordance with the Act and the Rules?”

Working the remedy: a procedural map for the non-borrower applicant

The doctrinal argument is worth little if the application is filed late, pleaded loosely, or prosecuted without the record. What follows is the practical half.

Choosing the forum and the moment

The application lies to the Debts Recovery Tribunal within whose jurisdiction the secured asset is situate, or within whose jurisdiction the cause of action arises. It is filed under Section 17(1) read with Rule 3 of the Debts Recovery Tribunal (Procedure) Rules, 1993, and, in tribunals that have migrated to e-filing, through the prescribed portal. On the fee, the proviso to Section 17(1) is not merely a rhetorical weapon; it is an operative provision. A non-borrower applicant should tender fee as “a person other than the borrower” and say so expressly on the memo, because the registry sometimes objects to a securitisation application by a person who is not named in the demand notice. The proviso is the complete answer to such an objection, and it is better placed on the record at the outset than argued at the board.

On timing, it is settled that the application need not wait for physical dispossession. Hindon Forge (P) Ltd. v. State of U.P., (2019) 2 SCC 198, holds that an application under Section 17(1) is maintainable even before actual physical possession of the secured asset is taken over. In practice this matters greatly: the occupant who waits until the locks are broken is arguing for restoration; the occupant who files on receipt of the commissioner’s notice is arguing for preservation. The second is a far easier order to obtain.

Limitation, and the answer to the inevitable objection

Section 17(1) prescribes forty-five days “from the date on which such measure had been taken”. Against a borrower who was served, that is straightforward. Against an occupant who was never served with anything, it is not, and the Bank will run limitation as its first point.

The answer has three limbs, and all three should be pleaded. First, limitation against a non-borrower runs from the date of knowledge of the measure affecting her, because a period cannot run from a notice never served upon her and of which she was never made aware. Second, where the applicant is in occupation and dispossession is imminent but not yet effected, the cause of action is a continuing one. Third, and without prejudice, Section 17(7) applies the Recovery of Debts and Bankruptcy Act, 1993 to the disposal of the application, and Section 24 of that Act applies the Limitation Act, 1963 to applications made to the Tribunal — so that a delay application under Section 5 is competent and should be filed by way of abundant caution rather than resisted on principle.

There is a related trap. Each measure under Section 13(4) is a distinct measure, and a challenge mounted only against the last step will draw the argument that the earlier steps have attained finality. For a non-borrower this is usually answerable on the knowledge principle, but the pleading must specifically aver when and how knowledge of each step was acquired, rather than making a single undifferentiated averment of ignorance.

What to plead, and what to leave out

The single most common drafting error is to plead the occupant’s right as though it were a title. It is not and pleading it that way hands the Bank Prabha Jain.

Plead instead, in this order. First, standing: the applicant is a person aggrieved within Section 17(1); the measures are directed at dispossessing her; the proviso to Section 17(1) and Section 17(3)(b) confirm that Parliament contemplated exactly such an applicant. Second, possession: the applicant was in actual, physical possession on each date on which the creditor claims to have taken any measure and remains so. This is the jurisdictional fact on which everything else rests, and it should be pleaded with dates and supported on affidavit. Third, illegality in the measures — the substance of the case. Fourth, an express disclaimer: the applicant asserts no right superior to the security interest, seeks no declaration as to the validity of the mortgage or any antecedent document, and seeks no direction as to which security the creditor should proceed against. That disclaimer costs nothing and removes at a stroke the three objections on which such applications are most often dismissed, including the objection accepted at paragraph 17 of Meenakshi Goel.

On illegality, the heads worth pleading are familiar but are too often pleaded generally rather than specifically. Service of the demand notice must be tested against Rule 3(1) of the Security Interest (Enforcement) Rules, 2002, which prescribes registered post with acknowledgement due, speed post, courier or another mode giving acknowledgement of delivery, with affixation and publication permitted only where service in that manner fails. The taking of possession must be tested against Rule 8(1), which requires delivery of the possession notice and affixation on the outer door or at a conspicuous place, and Rule 8(2), which requires publication within seven days in two leading newspapers, one in the vernacular language having sufficient circulation in the locality, together with the panchnama and inventory in the forms in Appendix IV and IV-A. That these Rules are mandatory and not directory is established by Mathew Varghese v. M. Amritha Kumar, (2014) 5 SCC 610, Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660, and J. Rajiv Subramaniyan v. Pandiyas, (2014) 5 SCC 651. The Section 13(3A) safeguard, introduced in consequence of Mardia Chemicals, and the mandatory character of which was affirmed in ITC Ltd. v. Blue Coast Hotels Ltd., (2018) 15 SCC 99, is a further head — though an occupant must plead it carefully, since the right to make a representation is the borrower’s, and her point is that the notice was never served on anyone in occupation at all.

An occupant in physical residence has a particular forensic advantage here that is frequently wasted. If the Bank asserts affixation on the outer door or publication in the local vernacular daily, the applicant who was living in the premises throughout is uniquely placed to depose that no such affixation occurred and that no such publication came to her notice. Depose to it specifically, on affidavit, with reference to dates.

The affidavit under the proviso to Section 14(1) — the record worth fighting for

For a third-party occupant this is usually the strongest ground, and it follows directly from Balkrishna Rama Tarle. Because the Magistrate’s role is ministerial and confined to verifying the contents of the affidavit filed under the first proviso to Section 14(1), the truthfulness of that affidavit is the only safeguard the Section 14 mechanism possesses. The proviso requires the authorised officer to declare nine specified particulars on oath, and the second proviso requires the Magistrate to pass orders only after satisfying himself as to the contents of the affidavit. Where the affidavit conceals that a person other than the borrower is in actual physical possession, or conceals a subsisting order of a competent court operating on the same property, the instrument on which the whole mechanism depends has failed, and the order founded on it is vitiated at its foundation. The law on orders obtained by suppression is S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, and A.V. Papayya Sastry v. Government of Andhra Pradesh, (2007) 4 SCC 221.

The practical corollary is that the first interlocutory application to file, alongside the securitisation application, is an application for production of the Section 14 record — the application, the authorised officer’s affidavit, the annexures and the order sheet — together with the proof of service of the notices under Sections 13(2) and 13(4), the panchnama, the inventory and the newspaper publications. Most non-borrower applications are decided on inference because nobody called for the record. It should be called for on day one and pressed.

Where a court commissioner has been appointed under Section 14(1A), NKGSB Co-operative Bank Ltd. v. Subir Chakravarty (supra) holds that the power extends to appointing an advocate commissioner but requires that the appointee be capable of discharging the responsibility and that the appointment be preceded by application of mind. An order that records no reason at all, while authorising breaking open of locks and police assistance against a household, is open to challenge on that footing.

The interim stage, which is where the case is really won

Almost every such matter turns on the interim order, and Meenakshi Goel is a reminder of how fragile ad-interim protection is. The Link Officer’s order of 28.11.2025 was held at paragraph 15 of the appellate order to be interim only, restraining possession until the next date and not deciding the interim application at all — with the consequence that DRT-2 was fully competent to decide it afresh on merits and to decline relief. The lesson is that an occupant who obtains a short ad-interim order and then relaxes has obtained very little. Press for the interim application to be heard and decided on merits and ensure that the order records the findings on possession, prima facie case and balance of convenience.

The reliefs to seek at that stage are a stay of the operation and execution of the Section 14 order and of the commissioner’s notice; an injunction restraining the creditor, the authorised officer, the commissioner and all persons acting through them from taking physical possession; a direction to maintain status quo as regards possession; an injunction against sale, auction, lease, assignment or creation of third-party rights; and production of the record. On balance of convenience the point is straightforward and should be made shortly: the secured asset is immovable and imperishable, the creditor loses nothing by a short deferment, and Section 17(5) contemplates disposal within sixty days, extendable so that total pendency does not exceed four months. If the Tribunal is slow, Section 17(6) permits any party to move the Appellate Tribunal for a direction for expeditious disposal — an underused provision.

What the Tribunal can finally grant

Three sources of power should be identified expressly in the prayer clauses, because tribunals grant what they are asked for.

1. Under Section 17(3)(a), a declaration that the recourse to one or more measures under Section 13(4) is invalid.
2. Under Section 17(3)(b), restoration of possession to “the borrower or such other aggrieved person, who has made an application under sub-section (1)” — the amended words should be quoted in the prayer itself.
3. Under Section 17(3)(c), such other direction as the Tribunal considers appropriate and necessary in relation to the recourse taken.

That third power is the one most worth cultivating, and it is almost never invoked. It permits the Tribunal to mould relief. Where the measures are found lawful and the occupant must ultimately go, Section 17(3)(c) supports a direction granting a defined and reasonable period within which to vacate, so that dispossession, if it must occur, occurs with notice rather than by a locksmith and a police party at noon. An alternative prayer in those terms should be pleaded without prejudice, because it gives the Tribunal a landing place short of outright dismissal, and a tribunal offered only two extremes will usually pick the creditor’s.

Section 19 supplies a further power, permitting the Tribunal, where possession is found to have been wrongfully taken, to direct restoration and to award such compensation and costs as it deems fit. In an appropriate case a prayer for costs against an authorised officer whose affidavit concealed the occupant is not fanciful.

The appellate stage and the pre-deposit question

Section 18 requires an appellant to deposit fifty per cent of the amount of debt due as claimed by the secured creditor or determined by the Tribunal, reducible by the Appellate Tribunal to not less than twenty-five per cent for reasons recorded.

For a non-borrower this is a question of some practical importance and the answer is favourable. In Manju Devi v. RBL Bank Ltd. (supra), the Delhi High Court held that the mandatory condition of pre-deposit does not apply to a third person who has not obtained finance from the institution — a proposition applied by the Appellate Tribunal at Delhi in G.R. Malhotra v. Canara Bank, 1 (2018) BC 19 (DRAT), to third-party purchasers, and considered again by the Delhi High Court in Indiabulls Housing Finance Ltd. v. Vaibhav Jhawar, W.P.(C) No. 4237 of 2018, decided on 12.12.2018. It is the reasoning the Appellate Tribunal accepted at the outset of Meenakshi Goel itself. The logic is simple and worth stating in the waiver application: the pre-deposit is calibrated to the “amount of debt due” from the appellant, and from a person who is neither borrower nor guarantor nor mortgagor, the debt due is nil; fifty per cent of nothing is nothing.

File the waiver application along with the appeal, not afterwards, and plead the three negatives — not borrower, not guarantor, not mortgagor — in terms, supported by the absence of any loan document bearing the appellant’s signature.

Mistakes that sink these applications

Three recur. The first is delay and silence. PNB Housing Finance v. Manoj Saha is a caution: a possessory claimant who could not establish possession antecedent to the mortgage, who stayed silent when symbolic possession was advertised in December 2021, and who approached the Tribunal only after physical possession was taken in August 2023, got nothing. Silence in the face of publication is treated as acquiescence, and it also destroys the knowledge-based answer on limitation.

The second is overpleading. An application that asks the Tribunal to declare the mortgage void, or to hold that the occupant’s right is superior to the security interest, invites dismissal on Prabha Jain and takes the good grounds down with the bad.

The third is asking the Tribunal to direct the creditor which security to realise first. There is no such power, the point was rejected at paragraph 17 of Meenakshi Goel and at paragraph 12 of the underlying order of DRT-2, and raising it signals that the applicant is seeking indulgence rather than legality.

Conclusion

None of this means the occupant wins. A wife whose marriage post-dates the mortgage by several years will not defeat the security interest, and she should not plead as though she might. A tenant who cannot show possession antecedent to the mortgage will not defeat it either. That is as it should be; the Act exists to make security enforceable.

What it does mean is that the choice is not between “the occupant defeats the bank” and “the Tribunal has no jurisdiction”. There is a third position, and it is the correct one. The Debts Recovery Tribunal has full jurisdiction under Sections 17(1), 17(2), 17(3) and 17(4A) to hear an occupant who is not the borrower, to test every measure against the statute and the Rules, to declare the recourse invalid where the statute was disobeyed, to restore or preserve possession to “such other aggrieved person” who applied, to award compensation and costs under Section 19, and — where the measures are found lawful — to mould relief under Section 17(3)(c) so that dispossession occurs lawfully and with dignity. That is not indulgence; it is the discipline of a statute upheld on the representation that Section 17 furnishes an efficacious remedy.

Parliament wrote “any person” in 2002 and meant it. When the Supreme Court found in 2014 that the remedial provision did not match the standing provision, Parliament fixed the remedial provision in 2016. It is time our pleadings, and our orders, caught up with the amended text.

Cases and authorities referred

Supreme Court

1. Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311
2. Transcore v. Union of India, (2008) 1 SCC 125
3. Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366
4. Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corpn., (2009) 8 SCC 646
5. United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110
6. Kanaiyalal Lalchand Sachdev v. State of Maharashtra, (2011) 2 SCC 782
7. Standard Chartered Bank v. V. Noble Kumar, (2013) 9 SCC 620
8. Jagdish Singh v. Heeralal, (2014) 1 SCC 479
9. Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd., (2014) 6 SCC 1
10. Mathew Varghese v. M. Amritha Kumar, (2014) 5 SCC 610
11. Vasu P. Shetty v. Hotel Vandana Palace, (2014) 5 SCC 660
12. J. Rajiv Subramaniyan v. Pandiyas, (2014) 5 SCC 651
13. Vishal N. Kalsaria v. Bank of India, (2016) 3 SCC 762
14. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165
15. State Bank of Patiala v. Mukesh Jain, (2017) 1 SCC 53
16. Robust Hotels (P) Ltd. v. EIH Ltd., (2017) 1 SCC 622
17. ITC Ltd. v. Blue Coast Hotels Ltd., (2018) 15 SCC 99
18. Authorised Officer, SBI v. Allwyn Alloys (P) Ltd., (2018) 8 SCC 120
19. Hindon Forge (P) Ltd. v. State of U.P., (2019) 2 SCC 198
20. Bajarang Shyamsunder Agarwal v. Central Bank of India, (2019) 9 SCC 94
21. Madhav Prasad Aggarwal v. Axis Bank Ltd., (2019) 7 SCC 158
22. Sree Anandhakumar Mills Ltd. v. Indian Overseas Bank, (2019) 14 SCC 788
23. Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414
24. Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345
25. Electrosteel Castings Ltd. v. UV Asset Reconstruction Co. Ltd., (2022) 2 SCC 573
26. NKGSB Co-operative Bank Ltd. v. Subir Chakravarty, (2022) 10 SCC 286 : (2023) 1 SCC (Cri) 157
27. Prabha Tyagi v. Kamlesh Devi, (2022) 8 SCC 90
28. Balkrishna Rama Tarle (Dead) through LRs v. Phoenix ARC (P) Ltd., (2023) 1 SCC 662 : 2022 SCC OnLine SC 1299 (SLP No. 16013 of 2022, decided on 26.09.2022)
29. R.D. Jain & Co. v. Capital First Ltd., (2023) 1 SCC 675
30. Bank of Rajasthan Ltd. v. VCK Shares & Stock Broking Services Ltd., (2023) 1 SCC 1
31. Varimadugu Obi Reddy v. B. Sreenivasulu, (2023) 2 SCC 168
32. Celir LLP v. Bafna Motors (Mumbai) (P) Ltd., (2024) 2 SCC 1
33. Central Bank of India v. Smt. Prabha Jain, 2025 INSC 95 : (2025) 2 SCR 263 (Civil Appeal No. 1876 of 2016, decided on 09.01.2025)
34. PNB Housing Finance Ltd. v. Manoj Saha, 2025 INSC 847 (SLP (C) No. 7288 of 2024, decided on 15.07.2025)
35. S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1
36. A.V. Papayya Sastry v. Government of Andhra Pradesh, (2007) 4 SCC 221
37. Dhulabhai v. State of M.P., AIR 1969 SC 78
38. Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, (2003) 6 SCC 220
39. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340

High Courts and Tribunals

40. Manju Devi v. RBL Bank Ltd., W.P.(C) No. 11766 of 2016 (Delhi High Court, decided on 01.02.2017)
41. G.R. Malhotra v. Canara Bank, 1 (2018) BC 19 (DRAT Delhi, decided on 04.08.2017)
42. Indiabulls Housing Finance Ltd. v. Vaibhav Jhawar, W.P.(C) No. 4237 of 2018 (Delhi High Court, decided on 12.12.2018)
43. Bank of Baroda v. Gopal Shriram Panda, 2021 SCC OnLine Bom 466
44. Darly Shajan v. Shajan Thomas, W.P.(C) No. 27669 of 2025 (Kerala High Court)
45. Ammini Peter v. Union of India, W.P.(C) No. 36347 of 2025(P) (Kerala High Court)
46. Kolla Nehrumala v. Bank of Maharashtra, W.P. No. 6647 of 2022 (Andhra Pradesh High Court)
47. Khushwant Kaur v. Gagandeep Sidhu, Crl. Rev. P. No. 219 of 2021 (Delhi High Court, decided on 16.10.2025)
48. Meenakshi Goel v. HDFC Bank Ltd., Misc. Appeal No. 66 of 2026 with I.A. No. 635 of 2026 (DRAT, Delhi)

Statutes and subordinate legislation

49. Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Sections 13, 14, 17, 18, 19, 34, 35, 37
50. Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004
51. Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016
52. Security Interest (Enforcement) Rules, 2002 — Rules 3, 8 and 9, Appendices IV and IV-A
53. Recovery of Debts and Bankruptcy Act, 1993 — Sections 22 and 24
54. Debts Recovery Tribunal (Procedure) Rules, 1993
55. Protection of Women from Domestic Violence Act, 2005 — Sections 2(s), 12, 17, 19, 23
56. Transfer of Property Act, 1882 — Sections 60 and 65A
57. Limitation Act, 1963 — Section 5
58. Constitution of India — Articles 14, 21 and 300A

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Disclaimer: Views expressed are personal and are not intended as legal advice on any particular matter. Nothing in this article constitutes legal advice, and readers should seek independent professional advice on the facts of any particular matter before acting on any view expressed herein.

Author Profile: Mihirkumar V. Patel is an independent Advocate practicing before the High Court of Gujarat, Debts Recovery Tribunal-1 and 2 at Ahmedabad, Debts Recovery Appellate Tribunal at Mumbai, and the City Civil Court at Ahmedabad. He specializes in Writ Petitions (Article 226), Direct and Indirect Tax Litigation, Commercial Litigation, Land disputes, RERA, Banking, SARFAESI Act, RDB Act, and Recovery Disputes.