-1- WP 1895 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1895 OF 2010 Deepam B. Thanawala and another ... Petitioners versus Union Bank of India and others ... Respondents Mr. Amit Desai, Senior Advocate, with Smt. Nitya Mehta, instructed by M/s. Nityoah Suneel & Associates, for the petitioners. Mr. H. Toor, instructed by Mr. Nainesh Amin, for respondent No.1. CORAM: P.B. MAJMUDAR & ANOOP V. MOHTA, JJ. DATE: OCTOBER 07, 2010. P.C. By way of this petition, the petitioners have challenged the action of the respondent-Bank under the SARFAESI Act. It is the case of the petitioners that initially an amount of Rs. 20 crores was obtained from the respondent bank, and out of which Rs. 15 crores have already been paid. It is the case of the petitioners that the petitioners were not defaulters and, therefore, the action of the Bank in resorting to the provisions of Section 13 (2) of the SARFAESI Act was not justified in the facts and circumstances of the case. 2. The petitioners have challenged the proceedings initiated by the Bank on the ground of jurisdiction as well as on the ground that there was no -2- WP 1895 of 2010 cause of action for issuing notice under Section 13 (2) of the said Act. Learned counsel for the respondent-Bank submits that the Bank has rightly initiated the proceedings and that he is able to satisfy the Court on this aspect. 3. In our view, it is true that in a given case if the proceedings, on the face of it, are without jurisdiction and if it is found that the proceedings under the Act are not maintainable, then this Court may still entertain the writ petition, though normally such question should be left to the forum created under the Act. In our view, this is not a case in which we would like to entertain this petition in our extraordinary jurisdiction under Article 226 of the Constitution of India. 4. We accordingly direct the petitioners to approach the Debts Recovery Tribunal (DRT) on all available grounds which are raised in this petition including as to whether notice under Section 13 (2) of the SARFAESI Act could have been issued to the petitioners in the facts and circumstances of the case. If any proceedings are initiated under Section 17 of the SARFAESI Act, the DRT shall consider as to whether there was any justification for issuing notice under Section 13 (2) or the present case falls within the ambit of the Act. The Tribunal may address itself on all these points and thereafter proceed to deal with the matter on merits. In the meanwhile, the Respondent Bank may take symbolic possession of the residential flat in question but may not take any -3- WP 1895 of 2010 further steps thereof for a period of five weeks from the date of taking such symbolic possession. In the meanwhile, it would be open to the petitioners to apply for further interim relief from the DRT within a period of five weeks. 5. Mr. Desai, learned senior counsel appearing for the petitioners, states that the petitioners, without prejudice to their rights and contentions, are willing to deposit an additional amount of Rs. One crore by 15th December, 2010 before the DRT. The petitioners may accordingly deposit Rs. One crore before the Tribunal by 15th December, 2010. The Tribunal at the time of considering the question about interim protection, may pass appropriate orders considering the facts and circumstances and after hearing both the sides. If the petitioners have any grievance in any manner in connection with the interim protection, it would be open to them to take appropriate proceedings in accordance with law. In the meanwhile, it would be open to the parties even to negotiate and try to find out a solution before the DRT and if any such proposal is made by the petitioners, the DRT shall consider the same as deemed fit. It is clarified that we have not expressed any opinion on the merits of the matter and our observations in this order shall be treated as only tentative in nature and all the contentions of both sides are expressly kept open. In the meanwhile, respondent Bank may furnish to the petitioners statement of accounts maintained by the Bank within a period of two weeks from today. It is clarified that it is for the DRT to consider whether further protection, if any, is required -4- WP 1895 of 2010 to be given to the petitioners or not, after the aforesaid period of five weeks, in case any application is preferred by the petitioners for interim protection. It is for the DRT to also consider as to whether the point of jurisdiction is required to be considered as a preliminary issue before deciding other issues in the matter. However, at the time of deciding the interim relief, the Tribunal shall also prima facie consider as to whether the action taken by the Bank is in consonance with the provisions of SARFAESI Act. The said point may be considered at the time of deciding the applications for interim protection. 5. With the aforesaid observations, the petition is disposed of. P. B. MAJMUDAR, J. ANOOP V. MOHTA, J.