D.N. Patel, J. - (1.) THE present petition has beer, preferred against a notice, issued by the respondent -Bank under Sub -section (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. (hereinafter to be referred as "the SARFAESI Act, 2002") as well as against a notice, issued under Sub -section (4) of Section 13 of the Act 2002, to be read with Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 (hereinafter to be referred as "the Rules, 2002"), which is a possession notice.
(2.) HAVING heard learned Counsel for both the sides aid looking to the facts and circumstances of the case, I see no reason to entertain this writ petition, mainly for the following facts and reasons: (i) The petitioner was given a loan of sizable amount to the tune of Rs. 25.00,000/ - (rupees twenty five lacs). Thereafter, the loan amount could not be deposited by the petitioners with proper installments and ultimately, the respondent -Bank issued a notice under Sub -section (2) of Section 13 of the SARFAESI) Act, 2002 on 18th December, 2007, to the petitioners. The said notice is at Annexure 5 to the memo of petition. (ii) It appears that thereafter, the respondent -Bank has also taken action against the petitioners under Sub -section (4) of Section 13 of the SARFAESI Act, 2002, to be read with Rule 8(1) of the Rules, 2002, for taking over the possession of the property, which was mortgaged with the respondent -Bank. The dues to be paid by the petitioners was enhanced, because of accumulation interest and the said dues came at Rs. 28,86,000/ - (rupees, twenty eight lacs and eighty six thousand), as on 18 February, 2008, as per Annexure 7 to the memo of petition. (iii) It appears that the petitioners are having alternative efficacious remedy under the SARFAESI Act, 2002 and the petitioners could have approached a separate machinery, meant for these disputes, to be decided under Section 17 of the SARFAESI Act, 2002, before the Debts Recovery Tribunal, Ranchi. Moreover, there is an inbuilt further machinery to prefer an appeal before the Appellate Tribunal under Section 18 of the SARFAESI Act, 2002. Thus, the SARFAESI Act, 2002 is a separate and special Act for the debts towards the Bank and the notice, issued under Section 13(2) as well as the action taken under Section 13(4) can be challenged before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, 2002 and there is further provision of appeal under Section 18 of the SARFAESI Act, 2002. (iv) Learned Counsel for the respondents has relied upon a decision, rendered by the Hon'ble Supreme Court in the case of Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill as reported in : A.I.R. 2009 SC 2420, wherein, at paragraph Nos. 21, 22, 23 & 24, it has been held as under: 21. It is clear that while enacting the SARFAESI Act the Legislature was concerned with measures to regulate securitisation and reconstruction of financial assets and enforcement of security interest. The Act enables the Banks and Financial Institutions to realise long -tem assets, manage problems of liquidity, asset liability mismatches and improve recovery by exercising powers to take, possession of securities, sell them and reduce non -performing assets lay adopting measures for recovery (sic) reconstruction. The provisions of Section 13 enable the secured creditors, such as Banks and Financial Institutions, not only to the possession of the secured assets of the borrower, but also to take over the management of the business of the borrower, including the right to transfer by way of lease, assignment or sale for realizing secured assets, subject o the conditions indicated in the two provisos to Clause (b) of Sub -section (4) of Section 13. 22. In order o prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the Banks or Financial Institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in Sub -section (4) of Section 13 taken by the secured credits to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in Sub -section (3) thereof. 23. The intention of the legislature is, therefore, clear that while the Bunks and Financial Institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee. The consequences of the authority vested in DRT under Sub -section (3) of Section 17 necessarily implies that the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. The Legislature by including Sub -section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. Resultantly, the submissions advanced by Mr. Gopalan and Mr. Altaf Ahmed that the DRT has no jurisdiction to deal with a post 13(4) situation, cannot be accepted. The (sic) in the views expressed by the Bombay High Court and the Madras High Court has, in fact, been resolved to some extent in the Mardia Chemicals Ltd.'s case (supra) itself and also by virtue of the amendments effected to Sections 13 and 17 of the principal Act. The Liberty given by the learned Single Judge to the appellants to resist S.A. No. 104 of 2007 preferred by the respondents before the DRT on all aspects was duly upheld by the Division Bench of the High Court and there is no reason for this Court to interfere with the same. 24. We are unable to agree with or accept the submissions made on behalf of the appellants that the DRT had no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under Section 13(4) of the Act. On the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT. Thus, in view of the availability of alternative efficacious remedy, I am not inclined to exercise the powers, vested in this Court under Article 226 of the Constitution of India. There is no substance in this writ petition and, hence, the same is hereby dismissed, on the ground of availability of alternative efficacious remedy to the petitioners.;