1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No.3726 of 2008 [V.N. Belgamwar Vs. Union of India & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. L.H. Kothari, Adv., for the petitioner. Mr. Panpalia, Adv., holding for Mr. V.B. Lohiya, Adv., for Respondent Nos. 2 and 3. ----- CORAM : B.H. MARLAPALLE AND A.H. JOSHI, JJ. DATE : 17th November,2008. Heard Mr. Kothari, learned counsel for the petitioner, who is a borrower of a loan obtained from the respondent no.2-Bank. The petitioner prays for a declaration that the Securitization & Re-construction of Financial Assets & Enforcement of Security Interests Act, 2002 [“the Securitization Act”, for short] does not empower the Central Govt., to specify a Co-operative Bank as a “Bank” for the purpose of Section 2 (c) of the said Act, and to strike down the Notification dated 28th January, 2003 being ultra vires the powers of the Central Govt., under the Act. The petitioner further prays to quash and set aside the Auction Notice dated 19th December, 2007 published in one of the local newspapers at the instance of the 2 Bank. Admittedly, the petitioner was sanctioned a loan of Rs. 13,50,000-00 by the Respondent No.2-Bank, and the subject property was mortgaged against the said loan. The Securitization Act was made applicable to the Co-operative Banks under the Notification dated 28th January, 2003 issued by the Ministry of Finance, Govt. of India, and pursuant to the same, a notice under Section 13 (2) of the said Act was issued on 21st May, 2005. Though, as per the petitioner, the order under Section 13 (4) was not communicated to him and straightway the auction notice dated 19th December, 2007 was published in one of the local newspapers, we have noted from the Auction Notice that the possession under Section 13 (4) of the Act was taken on 11th October, 2007. The challenge to the Notification dated 28th January, 2003 has failed before this Court, and our decision is a subject-matter of challenge before the Apex Court. However, the Apex Court has not stayed the Notification dated 28th January, 2003 as of now and, therefore, a mere pendency of the Special Leave Petitions and the interlocutory orders passed therein will not be a reason to entertain this petition. The petitioner has a remedy of filing 3 an appeal before the Debts Recovery Tribunal under Section 17 against the measures taken under Section 13 (4) of the Securitization Act, and all the issues raised in this petition can be agitated by the petitioner in an appeal. The learned Counsel for the petitioner also submitted that almost half of the dues has been remitted to the Bank. All these are the issues which the Tribunal will have to consider in an appeal to be filed under Section 17 of the Securitization Act. We, therefore, dispose off the petition by relegating the petitioner to the remedy of an appeal under Section 17 of the Act before the Debts Recovery Tribunal at Nagpur, and if such an appeal is filed within a period of two weeks from today, the period of pendency of this petition from 19th August, 2008 shall be taken into consideration for considering the application for condonation of delay in filing the appeal. The order of status quo granted earlier will continue to operate for a period of two weeks, and needless to mention, the prayer for any interim relief in the proposed appeal would be considered by the Tribunal on its own merits and without being influenced by the order of status quo. Judge Judge |Hedau| 4