In the High Court of Judicature at Madras Dated: 4.8.2008 Coram: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.18056 of 2008 & M.P.Nos.1 and 2 of 2008 1. P.Kannan 2. R.Palanisamy 3. P.Rajeswari .. Petitioners vs. 1. The Authorised Officer, Tamilnad Mercantile Bank, No.6, First Floor, Chikkanna Chettiar Street, Tiruppur-641 604. 2. The Debts Recovery Appellate Tribunal, No.55, Ethiraj Salai, Chennai-600 008. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, as stated therein. For petitioners : Mr.Jayesh B.Dolia for M/s.Aiyar & Dolia For respondent-1 : Mr.V.Chandrasekaran Order (The Order of the Court was made by S.J.Mukhopadhaya,J) The prayer in the Writ Petition is for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the order dated 10.7.2008 passed in IN-SA.No.391 of 2008 by the Debts Recovery Appellate Tribunal, Chennai and quash the same and forbear the first respondent from bringing the property for sale. 2. The first respondent-Tamilnad Mercantile Bank (hereinafter referred to as 'the Bank'), having taken action under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 https://hcservices.ecourts.gov.in/hcservices/ (for short, 'the NPA Act') the first writ petitioner/borrower and the second and third writ petitioners/guarantors/mortagagors preferred an appeal (application) under Section 17 of the NPA Act before the Debts Recovery Tribunal (for short, 'the DRT'), Coimbatore. Having been imposed with a conditional interim order of stay in I.A.No.1285 of 2008 in S.A.No.69 of 2008, by order dated 30.4.2008, the petitioners moved before the Debts Recovery Appellate Tribunal, Chennai, against such order of the DRT. The DRAT, having noticed the earlier order by it passed on 10.6.2008, dismissed the stay application and the proceedings in IN (SA).No.391 of 2008, for non-compliance of the conditional order, giving rise to the present Writ Petition. 3. Learned counsel appearing on behalf of the petitioners— borrower/guarantors/mortgagors, offered that out of the three mortgaged properties in question, one of the properties, which is an agricultural property, measuring 12.90 acres situated at Karapalayam Village, Near Kangeyam, may be auction-sold by the Bank at the first instance. If the total amount is not recovered, then, it may proceed in accordance with law. 4. Learned counsel appearing on behalf of the Bank raised a technical objection. According to him, the proceedings under Section 17 of the NPA Act relate to two other properties, which are not agricultural properties. No action has been taken under Section 13(4) of the NPA Act with regard to the agricultural property, as it is not permissible under the provisions of the NPA Act and for that, the Bank may have to file a separate application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'the DRT Act'). 5. We have heard the learned counsel appearing for the parties and noticed the rival contentions. 6. So far as the provisions of the NPA Act and the DRT Act are concerned, both relate to the recovery of debts due to secured creditor from the borrower/guarantor/mortgagor. In the case of "Transcore vs. Union of India" reported in 2008 (1) SCC 125 = 2006 (5) CTC 753 (SC), the Supreme Court observed as follows: "14. .... The object of the DRT Act as well as the NPA Act is recovery of debt by non-adjudicatory process. These two enactments provide for cumulative remedies to the secured creditors. By removing all fetters on the rights of the secured creditor, he is given a right to choose one or more of the cumulative remedies. The https://hcservices.ecourts.gov.in/hcservices/ object behind Section 13 of the NPA Act and Section 17 r/w Section 19 of the DRT Act is the same, namely, recovery of debt. ...." According to us, the secured creditor should be interested in recovering its dues as early as possible, to which it is entitled to. It is not always necessary for the secured creditor to take steps for transfer or sale of the secured asset, even after taking steps under Section 13(4) of the NPA Act. Under Section 13(8) of the NPA Act, "If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset." In such a case, we are of the view that the borrower/mortgagors/guarantors having offered for auction-sale of one of the mortgaged properties, even without resorting to any of the proceedings under the provisions of the NPA Act or the DRT Act, on the request of the borrower/mortgagors/guarantors alone, the secured creditor can auction-sale the mortgaged property and recover its dues. 7. In view of the discussion and findings as recorded above, we allow the petitioners/borrower/guarantors/mortgagors to request the Bank in writing for auction-sale of the agricultural property in question at the first instance. If such a request is made by the petitioners/borrower/guarantors/mortgagors in writing, the Bank, instead of taking steps under the provisions of the NPA Act, will take steps for auction-sale of such agricultural (mortgaged) property in question, publish appropriate notice in the newspapers for auction-sale of the agricultural property in question and from the auction-sale amount, it may adjust its dues. Thereafter, if further amount is due, the Bank may proceed in accordance with law. 8. If the petitioners/borrower/guarantors/mortgagors give such offer in writing to the Bank for auction-sale of the agricultural property in question, they cannot raise objection that such auction-sale is not permissible under the provisions of the NPA Act, 2002 or it should have been made only after the order of the DRT in the proceedings under the provisions of the DRT Act, 1993. 9. Further, if no such offer is given by the petitioners/borrower/guarantors/mortgagors within fifteen days, then it will be open for the Bank to proceed in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 10. The Writ Petition is disposed of with the aforesaid observations/directions. No costs. The Miscellaneous Petitions are closed. Cs Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Debts Recovery Appellate Tribunal, Chennai 2.The Debt Recovery Tribunal, Coimbatore. + 1 cc to Mr. V. Chandrasekaran, Advocate, SR No.42678 + 1 cc to M/s. Aiyar and Dolia, Advocate, SR No.42276 W.P.No.18056 of 2008 GGK(CO) SR/8.8.2008 https://hcservices.ecourts.gov.in/hcservices/