1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.4528 OF 2010 (Shri Rajkumar H. Dhengre vs. State Bank of India) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND A.P. BHANGALE, JJ. DATED : JANUARY 31, 2011 Heard Shri Tiwari, learned Counsel for the petitioner, and Ms. Y. Ramani, learned Counsel for the respondent. The petition is directed against the notice dated 2/9/2010 issued by the respondent Bank under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Shri Tiwari, learned Counsel for the petitioner, states that as per Section 13(4) of the said 2 Act, the respondent Bank has to first take possession of the secured assets of the borrower including right to transfer by way of lease, assignment, etc. It is submitted that since action has not been taken by the respondent Bank under Section 13(4) of the said Act till this date, the Debt Recovery Tribunal did not entertain the application filed by the petitioner under Section 17 of the said Act. Ms. Y. Ramani, learned Counsel for the respondent Bank, states that the impugned communication is the notice issued by the respondent Bank under Section 13(4) of the said Act whereby petitioner was directed to hand over the possession of the secured assets on or before 20/9/2010, failing which possession of the mortgaged property shall be taken without notice. It is submitted that since possession of the secured assets has not been handed over to the respondent Bank by the petitioner, appropriate steps as contemplated under Section 13(4) of the said Act shall be taken against the secured assets of the petitioner. 3 Considering the scheme of Section 13(4) of the said Act, it is evident that in case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor is entitled to take recourse to one or more measures stipulated in sub-section (4). One of them is by taking possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured assets. The learned Counsel for the respondent Bank has already stated that action under Section 13(4) of the said Act shall be taken against the petitioner in accordance with law and procedure applicable in this regard. If the action is taken against the petitioner, it is open for the petitioner to approach the Debt Recovery Tribunal under Section 17 of the Act for redressal of his grievance. At this stage, learned Counsel for the petitioner seeks permission to withdraw the amount deposited in this Court, which has not been objected by the learned Counsel for the respondent Bank. In the circumstances, request of the petitioner for withdrawal of amount is allowed. 4 The Office is directed to refund the amount deposited by the petitioner. With the above observations and directions, the petition is disposed of. JUDGE JUDGE khj