- (1.) In all these writ petitions, the petitioners have raised question of applicability of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short the Act of 2002) for securitising the mortgaged assets secured for recovery of the financial assistance given by India bulls Housing Finance Limited (in short, IHFL) prior to the notification dated 19-9-2007 by the Central Government issued declaring IHFL a 'financial institution' under sub clause (iv) of clause (m)of sub-section (1) of Section 2 of the Act of 2002.
(2.) The Act of 2002 was enacted to regulate Securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto, w.e.f. 17-12-2002 replacing the Ordinance notified on 21-6-2002. A secured creditor under Section 2 (zd) is defined to mean any bank or financial institution or any consortium or group of banks or financial institutions and includes- (i) debenture trustee appointed by any bank or financial institution; or (ii) Securitisation company or reconstruction company, whether acting as such or managing a trust set up -by such Securitisation company or reconstruction company for the Securitisation or reconstruction, as the case may be; or (iii) any other trustee holding securities on behalf of a bank or financial institution, in whose favour security interest is created for due repayment by any borrower of any financial assistance.
(3.) The financial institution is defined under Section 2 (m) of the Act to mean:- "(m) "financial institution" means- (i) a public financial institution within the meaning of section 4A of the Companies Act, 1956(1 of 1956); (ii) any institution specified by the Central Government under sub-clause (ii) of clause (h) of section 2 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993); (iii) the International Finance Corporation established under the International Finance Corporation (Status, Immunities and Privileges) Act, 1958 (42 of 1958) (iv) any other institution or non-banking financial company as defined in clause (f) of section 45-I of the Reserve Bank of India Act, 1934 (2 of 1934), which the Central Government may, by notification, specify as financial institution for the purposes of this Act;";