IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 135 of 2006 (M/B) 1. Madaan Sugar Works, Village and P.O. Bara, Kichha, District Udham Singh Nagar, Uttaranchal through its Proprietor Gulshan Kumar Madaan, S/o Sri Pyare Lal Madaan, R/o Balwant Colony, Ward No. 3, P.O. Kichha, District Udham Singh Nagar, Uttaranchal. 2. Gulshan Kumar Madaan, S/o Sri Pyare Lal Madaan, R/o Balwant Colony, Ward No. 3, P.O. Kichha, District Udham Singh Nagar, Uttaranchal, Proprietor Madaan Sugar Works, Village and P.O. Bara, Kichha, District Udham Singh Nagar, Uttaranchal. …….. Petitioners Versus State Bank of Patiala, Branch Rudrapur, 173/3 Civil Lines, Rudrapur, District Udham Singh Nagar, Uttaranchal through its Senior Manager. …….. Respondent Mr. M.C. Bansal, Advocate for the petitioners. Mr. Ashish Joshi, Advocate for the respondent. JUDGMENT Coram: Hon. Rajeev Gupta, C.J. Hon. P.C. Verma, J. RAJEEV GUPTA, C.J. (Oral) 1. The petitioners have filed this writ petition for the following reliefs: “a. To issue a writ, order or direction in the nature of mandamus directing the respondent Bank to settle the loan account of the petitioner no. 1 through compromise in the light of the R.B.I.-O.T.S. Scheme as mentioned in annexure no. 5 to this writ petition. b. To issue a writ, order or direction in the nature of mandamus directing the respondent Bank not to auction on 25.2.2006, the alleged secured assets of the petitioners as well as his guarantor as mentioned in the 2 advertisement published in the Daily News Paper Amar Ujala datd 22.1.2006 (Annexure no. 6) up till 31.3.2006, the last date of R.B.I.-O.T.S. Scheme. c. To issue any other writ, order or direction or grant such other further relief which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. d. Award the cost of the petition to the petitioners.” 2. The main challenge in the writ petition is against Annexure P6 whereby the respondent State Bank of Patiala, Rudrapur Branch has published notice with regard to the public auction of the petitioners’ specified properties under the provisions of Securitisation and Reconstruction of financial Assets and Enforcement of Security Interest Act, 2002 read with the provisions of Security Interest (Enforcement) Rules, 2002. 3. The Apex Court in the case of Mardia Chemicals Ltd. And others Vs Union of India and others reported in (2004) 4 Supreme Court Cased 311 has made following observations in para 80: “80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debts Recovery Tribunal. The abovenoted provisions are for the purpose of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows: 1. Under sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days’ notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have 3 already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information / knowledge of the borrower without giving rise to any right to approach the Debts Recovery Tribunal under Section 17 of the Act, at that stage. 2. As already discussed earlier, on measures having been taken under sub-section (4) of Section 13 and before the date of sale / auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debts Recovery Tribunal. 3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay / interim order subject to the condition as it may deem fit and proper to impose. 4. In view of the discussion already held in this behalf, we find that the requirement of deposit of 75% of the amount claimed before entertaining an appeal (petition ) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down. 5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the court.” 4. In view of the above dictum of the Apex Court, the petitioners’ remedy lies in approaching the Debts Recovery Tribunal against Annexure P6. 5. In this view of the matter, we decline to entertain the writ petition filed under Article 226 of the Constitution of India. 6. The writ petition, therefore, fails and is hereby dismissed. (P.C. Verma, J.) (Rajeev Gupta, C.J.) 08.02.2006 08.02.2006 G