( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.707 OF 2009 WRIT PETITION NO.707 OF 2009 WRIT PETITION NO.707 OF 2009 Kanaiyalal Lalchand Sachdev & Ors. .. Petitioners V/s State of Maharashtra & Ors. .. Respondents Mr.V.T.Tulpule with Ms.Kranti S.S.Anand for the petitioners. Mr.A.G.Damle for Respondent No.3. Mr.S.R.Borulkar, Public Prosecutor with Ms.U.V.Kejriwal, APP for the State. CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & CORAM : SMT.RANJANA DESAI & R.G.KETKAR, JJ. R.G.KETKAR, JJ. R.G.KETKAR, JJ. DATE : 28TH APRIL, 2009. DATE : 28TH APRIL, 2009. DATE : 28TH APRIL, 2009. P.C. P.C. P.C. 1. In this petition, the petitioners have challenged notice dated 27.2.2009 issued by the Assistant Registrar, Kurla Centre of Court, Mumbai. The said notice is addressed to the petitioners. The said notice refers to the order passed by the Chief Metropolitan Magistrate dated 3.2.2009 on the application filed by the State Bank of India i.e.respondent no.3 herein. The said order describes immovable properties which are the secured assets, and permits the Assistant Regisrar, Kurla to issue notice to take possession of the secured assets after giving the respondents therein (petitioners herein) reasonable time of not more than 15 days to hand over possession of the secured assets. It states that if the petitioners fail to hand over peaceful possession ( 2 ) steps may be taken with police help to take forcible possession. 2. We have heard at some length Mr.Tulpule, learned Counsel for the petitioners. Mr.Tulpule submitted that section 14 of the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (NPA Act) will take effect after the conditions and procedure u/s.13 thereof is followed. He further submitted that it is a settled law that the order u/s.14 of the NPA Act is not appealable. What is appealable is action u/s.13(4) of the NPA Act. He submitted that section 13(4) contemplates notice. Without giving notice and following due procedure the State Bank has approached learned Magistrate and obtained the order. He further submitted that what is served on the petitioners is the order and not the notice contemplated under Rule 8 and therefore the impugned order needs to be set aside. 3. We have also heard Mr.Borulkar, learned Public Prosecutor and Mr.Damle, the learned Counsel for 3rd respondent-State Bank of India who submitted that the law on the point raised by the petitioners is well settled by the Supreme Court in its judgment in Transcore V/s.Union of India and Anr. - (2007) 73 SCL Transcore V/s.Union of India and Anr. - (2007) 73 SCL Transcore V/s.Union of India and Anr. - (2007) 73 SCL 11 (SC) 11 (SC) 11 (SC). This judgment is followed by this Court in M/s.Trade Well and Anr.V/s.Indian Bank & Anr. - 2007 M/s.Trade Well and Anr.V/s.Indian Bank & Anr. - 2007 M/s.Trade Well and Anr.V/s.Indian Bank & Anr. - 2007 ( 3 ) All MR (Cri) 1357 All MR (Cri) 1357 All MR (Cri) 1357 to which one of us (Ranjana Desai, J.) is a party. Both the Counsel submitted that in the light of these judgments the present petition deserves to be dismissed. 4. Mr.Borulkar, learned Public Prosecutor further pointed out that the petitioners case that they had no notice of the proceedings cannot be accepted because in the notice which is impugned the case number is stated as 223/M/2008. The petitioners are well aware of this case. 5. Mr.Damle, learned Counsel for the State Bank of India has taken us through the affidavit of Vishwas Nakul Kadam, Manager of State Bank of India, Thane Branch. In paragraphs 2 & 3 it is stated as under: (2) I say that the Respondent No.3 has issued notice u/s.13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (hereinafter referred to as ‘said Act’) dated 11/4/2007 to the petitioners and the same is duly served and received by the Petitioners. Hereto annexed and marked as Exhibit "A" copy of notice dated 11/4/2007. I say that similar notices are served on all the petitioners. I say that the said notice is replied by reply dated 23.5.2007 on behalf of Petitioner No.6 in present petition. Hereto annexed and marked as Exhibit "B" copy of the reply. I say that after considering the reply the Respondent No.3 has communicated to the Petitioners the reasons for not accepting the same by letter dated 29.5.2007. Hereto annexed and marked as Exhibit "C" copy of said letter. (3). I say that the Respondent No.3 by public notice dated 8/7/2007 published the public notice in ( 4 ) newspaper informing the petitioners about the issuance of notice u/s.13 (2) of said Act. Hereto annexed and marked as Exhibit "D" copy of public notice. I say that the Respondent No.4 approached the court of Chief Metropolitan Magistrate by filing an application u/s.14 of the said Act. The said application is numbered as C.C.No.223/M/2008. Hereto annexed and marked as Exhibit "E" copy of the said application. I say that the Learned Magistrate after considering the documents has passed an order dated 3/2/2009 u/s.14 of the said Act. Hereto annexed and marked as Exhibit "F" copy of the said order. Mr.Damle submitted that pursuant to the said order dated 3.2.2009 the impugned notice is served on the petitioners. Mr.Damle submitted that the petitioners had ample notice about the proceedings because they have replied to the notice dated 11.6.2007. Mr.Damle submitted that correct procedure is followed by the State Bank. The petitioners are purposely feigning ignorance of the proceedings. He submitted that on this ground alone the petition deserves to be dismissed. 6. It is well settled that the action u/s.14 of the NPA Act is not appealable. The Supreme Court has made it clear in Transcore Transcore Transcore that u/s.17(2) of the NPA Act the DRT is required to consider whether any of the measures referred to in Section 13(4) taken by the secured creditor for enforcement of security are in accordance with the provisions of the NPA Act and the Rules made thereunder. If the DRT, after examining the facts and circumstances of the case and the evidence produced by the parties, comes to the conclusion that any of the measures taken under Section 13(4) are not in accordance ( 5 ) with the NPA Act, it shall direct the secured creditor to restore the possession/management to the borrower. There can be no debate therefore over this proposition. In this case the Bank has undoubtedly followed the procedure upto Section 13(3)(a). In the application made by the State Bank, it is stated that the Bank officials have a reasonable fear and apprehension of physical threat and/or assault upon them in the event they proceed to secure possession of the assets independently. In view of this fear and apprehension, the application u/s.14 of the NPA Act appears to have been made. 7. We have already noted that action u/s.14 cannot be challenged. The scheme of the NPA Act discloses that action taken u/s.14 is relatable to section 13(4)(a) and therefore, remedy u/s.17 is open to the petitioners. In our opinion therefore since alternative remedy is open to the petitioners no relief can be granted to them. 8. Mr.Tulpule, learned Counsel for the petitioners states that petitioners will file an appropriate application u/s.17 of the NPA Act to the DRT within a period of 10 weeks from today. In view of this statement which we have accepted, the respondents are directed to maintain status quo as of today for a period of 10 weeks from today without prejudice to their rights and contentions. We make it clear that if an ( 6 ) application u/s.17 of the NPA Act is filed, the DRT shall consider it independently and in accordance with law. Any application for further extension of the interim relief may also be considered by the DRT independently and in accordance with law. We also make it clear that if any application for condonation of delay is made the DRT shall consider it in accordance with law having regard to the pendency of this petition in this Court. We make it clear that we have not expressed any opinion on the merits of the case. Contentions raised by both sides are kept open. 9. With the above directions the petition is disposed of. (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) (SMT.RANJANA DESAI, J.) (R.G.KETKAR, J.) (R.G.KETKAR, J.) (R.G.KETKAR, J.)