THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO.11712 OF 2010 DATED:10.11.2011 Between: G.V. Viswanadh … Petitioner And The Axis Bank Rep. by its Managing Director Registered Office Trishul 3rd Floor, Samarateshwar Temple Law Garden, Ellis Bridge, Ahmedabad and others … Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO.11712 OF 2010 ORDER: Heard the learned counsel for the petitioner and the learned counsel for the respondent – bank, and with the consent of both the learned counsel, the writ petition itself is being disposed of at the stage of hearing vacate stay petition of the respondents. The petitioner is a borrower from the respondents 1 and 2 – bank whose housing loan account has been shown as non performing asset (NPA) under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘the Sarfaesi Act’) and the bank issued a notice under Section 13(4) of the Sarfaesi Act. At that stage, present writ petition is filed inter alia contending that the petitioner was never served with any notice under Section 13(2) of the Sarfaesi Act, which is mandatory, and consequently it was contended that the proceedings initiated under Section 13(4) of the Act for taking symbolic possession of the petitioner’s property was contrary to law and sought interference by this Court. A detailed counter affidavit has been filed by the respondent – Bank stating the circumstances under which the petitioner’s account was declared as NPA on 20.9.2009 and thereafter proceedings were taken under the Sarfaesi Act by issuing notice under Section 13(2) which was served on the petitioner on 4.12.2009 and as there was neither any response nor payment within sixty days, further notice under Section 13(4) of the Sarfaesi Act was issued, which was also served on the petitioner on 12.4.2010. It is stated that thereafter the respondent bank has taken symbolic possession as secured asset on 12.4.2010 and subsequently a notice thereof was published on 18.4.2010. At that stage, the petitioner approached this Court and obtained ex parte interim order of status quo on 19.5.2010. No reply affidavit is filed by the petitioner refuting the averments made in the counter affidavit. The narration of the facts, as above, clearly shows that the petitioner’s averments in the affidavit are found to be incorrect as he has been served with notice under Section 13(2) as well as under Section 13(4) of the Sarfaesi Act. In the circumstances, in view of the decision of the Supreme Court in Bank of India v. Satyavati Tondon[1] and Transcore v. Union of India[2], the writ petition, in any case, is not maintainable. The writ petition is accordingly dismissed with liberty to the petitioner to approach the Debts Recovery Tribunal by proceedings under Section 17 of the Sarfaesi Act, if he so advised. No order as to costs. _____________________ VILAS V. AFZULPURKAR, J 10.11.2011 bnr [1] AIR 2010 SC 3413 [2] (2008) 1 SCC 125