THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No. 28716 of 2008 Dated: 3-3-2010 Between: Hassain Saheb and another …Petitioners and ICICI Bank, rep. by its Authorised Officer Pankaj Ahuja and others …Respondents ORAL ORDER: (Per Hon’ble Sri Justice Goda Raghuram) Heard Sri Sanghi, learned counsel for the petitioners. Though the name of P.Ramachandran purported to represent the 1st respondent-Bank is reflected in the cause list, there is no appearance on behalf of the 1st respondent-Bank when the matter is taken up for admission hearing today. The writ petition is filed for the following reliefs: 1. declaring the action of the 1st respondent in invoking the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the petitioners’ property is wholly illegal, arbitrary, unconstitutional and violative of article 14, 21 and 300A of Constitution of India. 2. declaring that the action of the respondent Nos. 1 and 4 in trying to deprive the petitioners of their lawful right without any proper adjudication of the issue is wholly illegal, arbitrary, unconstitutional and violative of article 14, 21 and 300A of Constitution of India. 3. declaring the action of the 4th respondent in passing impugned order in Crl.Petition No. 3160 of 2008, dated 28- 11-2008 without enquiry and without giving any opportunity to the affected parties is violative of principles of natural justice, illegal and unconstitutional; and 4. direct the respondents not to take the possession of the property bearing Flat No. G-A in the ground floor of Milan Plaza, admeasuring 1160 Sq. ft. situated at Prakash Nagar, Begumpet, Hyderabad without following the due process of law, in he interest of justice. The petitioners are aggrieved by the order dated 28-11-2008 passed by the 4th respondent, the Chief Metropolitan Magistrate, Hyderabad in Crl.M.P.No. 6130 of 2008, on a petition by the 1st respondent against the 2nd respondent under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) seeking possession of the secured assets belonging to the 2nd respondent. The petition filed by the 1st respondent was allowed by the 4th respondent and an Advocate was commissioned to take possession of the property and handover the same to the 1st respondent-Bank, if necessary by securing police-aid for the purpose. The petitioners claim to have purchased Flat No. G-A in the ground floor of Milan Plaza of an extent of 1160 Sq. feet from the original owners who are asserted to be Smt Eera Bai w/o T.G.Krupa Nidhi and Smt Sabiha Nasir w/o Naseeruddin Khan in Municipal No. 1-10-275/5/2/3, of an extent of 337 Sq. yards. The petitioners claim to have made a title search and on being satisfied that their vendors had title to the property, to have purchased the flat under a registered sale deed dated 2-2-2006. The petitioners also assert to be living in the said flat. According to the petitioners, the 2nd respondent entered into an agreement of sale with one M/s Hashmi Constructions in September, 2005 proposing to purchase flat No. G1 in the ground floor comprising 2020 Sq. feet. However, the sale deed executed in favour of the 2nd respondent on 8-10-2005 refers to flat No. G1, ground floor of an extent of 1160 Sq. feet. Be that as it may. As the 2nd respondent had apparently defaulted in payment of a loan obtained from the 1st respondent-Bank, the 1st respondent initiated proceedings under the Act and eventually approached the 4th respondent for taking possession of the property. In the circumstances, the petitioner has approached this Court, in substance seeking interdiction of the order dated 28-11-2008 passed by the 4th respondent; the action of the 1st respondent in invoking the provisions of the Act; and the action of the respondents 1 to 4 in trying to deprive the petitioners of their lawful right to the property in question. The appropriate reliefs in this behalf are sought, which have already been adverted to. Section 17 of the Act confers an appellate remedy to any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 of the Act taken by a secured creditor or his authorised officer, to the Debts Recovery Tribunal having jurisdiction in the matter, within forty five days from the date on which such measures had been taken. Sub-section (2) of Section 17 ordains that the Debts Recovery Tribunal shall, inter alia, consider whether any of the measures referred to in Section 13 (4) of the Act taken by the secured creditors for enforcement of security are in accordance with the provisions of the Act and the Rules made thereunder. Elaborate and substantive adjudicatory jurisdiction is conferred on the Debts Recovery Tribunal to consider the grievances of any person aggrieved by any other measures referred to in Section 13 (4) of the Act. Section 13 of the Act sets out the provisions with regard to enforcement of security interest and provides that any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or Tribunal, by such creditor in accordance with the provisions of the Act. Sub-sections (2) and (3) of Section 13 provide for a notice to be issued by the secured creditor to the borrower and sub-section (3) specifies the contents of the notice. Sub- section (3A) enables the borrower to make any representation or raise any objection on receipt of the notice under sub-section (2). Sub- section (4) specifies the remedy available to the secured creditor, in case the borrower fails to discharge the liability in full within the period specified in sub-section 2. These remedies include taking possession of the secured assets; taking over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset; and appoint any person to manage the secured assets the possession of which has been taken over by the secured creditor. Section 14 of the Act is a provision in the nature of an aid to the secured creditor to take possession of the secured assets of the borrower and enables the appropriate Magistrate as specified in section 14 to take possession of the property on a petition by the secured creditor. Whether the petitioners the borrowers; whether the property in question belongs to the 2nd respondent who is asserted to be the borrower by the 1st respondent or to the petitioners; whether there is a dispute as to the identity of the property are matters falling within the matrix of grievances of the petitioners who certainly fall within the expression “any person” set out in section 17 of the Act. Sri Sanghi, learned counsel for the petitioners would contend that only the borrower has recourse to an appellate remedy under section 17 of the Act and that too if aggrieved by any of the measures referred to in section 13 (4). According to Sri Sanghi, the petitioners are not borrowers within the meaning of the expression as defined in the Act and, therefore, the 1st respondent- Bank is not a secured creditor insofar as the petitioners are concerned. The grievance of the petitioners does not fall within the matrix of grievances for which the appellate remedy is provided under section 17, is the nub of the petitioners contention. The above contention does not commend acceptance by this Court. The appellate remedy under Section 17 of the Act is couched in plenitudinous phraseology available not only to a borrower but any other person as well. Since the process under Section 14 is only in aid of the right of a secured creditor to take possession of the property, a right substantively covered by the provisions of Section 13 (4), the substantive grievance of the petitioners as asserted in this writ petition falls within the contours of Section 13 (4). In the considered view of this Court, the appellate remedy under Section 17 of the Act is available to the petitioners and the Debts Recovery Tribunal, if an appeal is preferred by the petitioners, will have to consider the entire matrix of the grievances that may be presented by the petitioners and take an appropriate view on such grievances presented, in accordance with law. Sub-section 1 of Section 17 enables any aggrieved person to pursue the appellate remedy within forty five days from the date on which the measure under Section 13 (4) is taken by the secured creditor. The writ petition has been filed on 29-12-2008 against the order impugned passed by the 4th respondent dated 28-11-2008, well within the period of forty five days. It is not as though the extraordinary remedy of a writ under Article 226 is not available. We do not consider this to be an appropriate remedy in the facts and circumstances of the case, as the petitioners have a substantive appellate remedy available under Section 17 of the Act. We are therefore inclined to relegate the petitioners to pursue the appellate remedy. If the petitioners prefer an appeal within one week from the date of receipt of a copy of this order, the same shall be entertained by the appropriate Debts Recovery Tribunal having jurisdiction in respect of the matter in question treating such an appeal as filed within time. By an interim order of this Court dated 29-12-2008, the 1st respondent was directed not to interfere with the possession of the petitioners in respect of Flat No. G-A in the ground floor of Milan Plaza, admeasuring 1160 Sq. feet situated at PrakashNagar, Begumpet, Hyderabad. In the facts and circumstances, we consider it appropriate and necessary to meet the ends of justice to direct maintenance of status quo as regards the possession of the property described hereinabove for a period of three weeks. Neither the interim order passed by this Court on 29-12-2008 nor the order of status quo granted for the period specified herein by this order shall be construed by any authority or Forum as an expression by this Court on the merits of the petitioners’ claim. The appropriate Tribunal/Forum shall take an appropriate decision in accordance with law, on the petitioners’ appeal, on a consideration of the facts and circumstances of the case presented to it, either at the time of final adjudication or for ad-interim consideration of any relief sought by the petitioners in such appeal/petition. The writ petition is disposed of as above at the stage of admission. No costs. _________________________ GODA RAGHURAM, J _________________________ NOUSHAD ALI, J 3rd March, 2010. Note: Issue copy in three days. /B.O/ GRR