[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.1857 OF 2008 Mrs. Shashi Gupta .... Petitioner. Vs. 1. The Union of India and Ors. .... Respondents. Mr. Mathews Nedumpara alongwith Vikas Mahangere for the petitioner. Mr. Ramakant Gade i/b. R.R.Gade & Associates for Respondent Nos.2 & 3. Mr. Rui Rodrigues alongwith D.A.Dube & S.C.Pal i/b.Dr. T.C.Kaushik for respondent No.1. CORAM CORAM CORAM : P.B.Majmudar and : P.B.Majmudar and : P.B.Majmudar and A.A.Sayed, A.A.Sayed, A.A.Sayed, JJ. JJ. JJ. DATE DATE DATE : September 8, 2008. : September 8, 2008. : September 8, 2008. [ 2 ] P.C. 1. By filing this petition, the petitioner has prayed that an appropriate writ and/or direction be issued to set aside the impugned notice issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (for short "Securitisation Act"). It is also prayed that consequential order passed by the Chief Metropolitan Magistrate Mumbai in respect of the petitioner’s property may also be set aside and the action of the respondent in taking away the possession of the petitioner’s property may also be set aside. 2. In this connection it is required to be noted that initially at the hearing of the writ petition before this Court, the Division Bench of this Court, on 25th August, 2008 passed the following order :- Matter not on Board. Taken on board on mentioning. It is contended by the learned Counsel appearing for the Petitioner that despite payment of Court Fees the debt Recovery Tribunal-II, has not even cared to register the said Appeal much less it being heard. We require the Debt Recovery Tribunal-II to register the Appeal and submit the report to the Registrar general by 27th August, 2008. In the meantime even if possession has been taken no further steps would be taken by the bank." [ 3 ] 3. In compliance with the aforesaid directions, the Registrar of the Mumbai Debts Recovery Tribunal II (for short "DRT") submitted report on 27th August, 2008, wherein it is clearly pointed out that the Appeal filed by the petitioner has already been registered and it is numbered as S.A.No.20 of 2008 on 6.5.2008. In the report it is further stated that notice was issued in the matter to the other side and the petitioner herein, who is the applicant before the DRT, has also filed service affidavit on 30.6.2008, on which date the other side put up the appearance and now the matter is kept for hearing on 11.9.2008. 4. It is an unfortunate state of affairs that the advocate for the petitioner had made such a reckless statement before the Division Bench of this Court and in view of such statement of the learned Counsel for the petitioner, the report from the DART was called for. It is apparent that the appeal of the petitioner has already been registered way back in the month of May, 2008 and when attention of the learned Counsel for the petitioner was invited in this behalf, he submitted that there was misunderstanding on his part. The learned Counsel for the petitioner further states that such a statement was made before the Division Bench [ 4 ] earlier through oversight as he was under an impression that the Appeal was not registered by the DART. He submitted that though it is true that the summons of the Appeal was already served by the petitioner to the other side in the said matter before the DRT, but he was under the impression that the Appeal was not registered. 5. In our view, the learned Counsel for the petitioner should have been more careful and when the learned counsel for the petitioner states that summons of the Appeal also was served by the petitioner on the other side he was aware of registration of the Appeal, which is further clear from the the report submitted by the DRT. Be that as it may, when the Appeal is already registered and pending for final disposal before the DRT and it is informed that the next date fixed for haring in the matter is 11.9.2008, it is for the DRT to decide the matter in accordance with law. Since the matter is already pending before the DRT, we would not like to go into other aspects of the matter at this stage. 6. So far as the grievance of the petitioner in connection with the issuance of notice under Section [ 5 ] 13(2) of the Securitisation Act is concerned, it is not in dispute that the proceedings are pending before the DRT in this behalf. Under these circumstances,s it is for the DRT to consider this aspect in accordance with law. In our view two parallel proceedings should not be allowed to be continued at the same time. Whether the petitioner has been wrongly dispossessed and whether the possession should be restored to the petitioner are all the questions which are to be determined by the DRT on its own merits. Suffice it to say that when the proceedings are already pending before the DRT, we would not like to entertain this petition though we agree with the submissions of the learned Counsel for the petitioner that alternative remedy may not be a bar in a given case yet in the instant case, since the petitioner has already availed of the alternative remedy, it would not be just and proper to entertain this writ petition. 7. The learned Counsel for the petitioner also cited various judgments on the ground that alternative remedy may not be a bar in case the action of the other side is void ab initio. At this stage we are not expressing any opinion as to whether the action of the respondents is void ab initio because the matter is [ 6 ] already pending before the DRT and at the cost of repetition we may state that since the petitioner has already moved the DRT, it would not be just and proper at this stage to entertain this petition. The learned Counsel for the petitioner has submitted that subsequently the Bank has taken the possession of the property and the Chief Metropolitan Magistrate has also ordered possession without hearing the petitioner. According to him the action of the Bank is contrary to the principles of natural justice. Even this aspect of the matter is kept open for consideration of the DRT and it is for the DRT to examine these aspects in accordance with law. We are informed that the matter is kept for hearing on 11.9.2008 before the DRT. 8. The learned Counsel for the respondent- Bank has submitted that the petitioner has made a wrong statement that the Appeal is not registered even though the same was registered by the Tribunal. However, in our view it is not necessary to go into this aspect as now it is for the DRT to decide the proceeding which is pending before it, in accordance with law. 9. The learned Counsel for the petitioner further submitted that the property in question has been [ 7 ] attached by the Bank in connection with the dues of her husband and the petitioner has now no relations in any manner with her husband. Even on this issue, we would not like to express any opinion as it is for the DRT to examine the said issue and this point can be raised by the petitioner in the pending proceedings before the DRT. 10. At this stage the learned Counsel for the petitioner stated that he has challenged the vires of the provisions of the Securitisation Act. So far as challenge of the petitioner regarding vires of the provisions of the Securitisation Act is concerned, in our view it is made only with a view to delay the proceedings. In this connection the Apex Court in its decision in case of MARDIA CHEMICALS LTD. VS. UNION OF INDIA reported in (2004) 4 SCC 311, wherein it is held as under :- "... we hold that the borrowers would get a reasonable fair deal and opportunity to get the matter adjudicated upon before the debts Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned [ 8 ] provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of the economy of the country and welfare of the people in general which would subserve the public interest...." 11. Whether the action of the Bank is contrary to the provisions of law or contrary to the procedure is to be examined by the DRT in the light of the observations made in the aforesaid decision of the Apex Court as well as in the facts and circumstances of the matter pending before it on its own merits. 12. We may clarify that we have not expressed any opinion on the subject matter nor adjudicated the matter on its merits and it is for the DRT to decide the same in accordance with law. The observations made by this Court in this order or in earlier orders may not be taken into account by the DART and the DART may take its own decision without being influenced by the [ 9 ] order/s of this Court, in accordance with law while deciding the Appeal. 13. Consequently the petition stands rejected and the notice is discharged. The interim reliefs granted stand vacated. [P.B.Majmudar, [P.B.Majmudar, [P.B.Majmudar, J.] J.] J.] [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]