1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No.2227 of 2008 [K.P. Neware 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. R.K. Thakkar, Adv., for the petitioner. Mr. N.S. Khubalkar, AGP for Respondent No.2. ----- CORAM : B.H. MARLAPALLE AND A.H. JOSHI, JJ. DATE : 21st November,2008. Heard. The petitioner had obtained a Term Loan of Rs.22,00,000-00 and a Cash Credit of Rs.1,00,000-00 from the respondent no.4-Bank and he became a defaulter. The Govt. of India issued a Notification dated 28th January, 2003 and brought the Co-operative Banks within the purview of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interests 2 Act, 2002 [“The Securitization Act”, for short]. The Bank, therefore, issued a notice under Section 13 (2) of the Securitization Act to the petitioner on 3rd March, 2008, and the petitioner states that he has made a representation in reply to the said notice on 24th March, 2008. This petition has been filed on 5th April, 2008 and objections were removed on 19th April, 2008. It is submitted by the petitioner that the Notification dated 28th January, 2003 issued by the Govt. of India is not applicable to the Co-operative Banks despite pendency of a Special Leave Petition [Civil] No. 19685 of 2007 before the Supreme Court and, therefore, the petitioner prays for entertaining this petition and for issuance of a Writ to quash and set aside the notice dated 3rd March, 2008. The applicability of the Notification dated 28th January, 2003 to the Co-operative Banks was a subject-matter of challenge before this Court and the said challenge was turned down. However, this Court passed some interim order, enabling the parties to approach the Supreme Court and subsequently in Special Leave Petition No. 19685 of 2007 and the connected Special Leave Petitions, the Supreme Court has passed an order so as to continue the interim relief granted by this Court. The fact remains that the applicability 3 of the Notification dated 28th January, 2007 has not been stayed by the Supreme Court and solely on the ground that the Special Leave Petition is pending before the Supreme Court, a Writ Petition under Article 226 of the Constitution need not be entertained when the petitioner has a remedy of an appeal under Section 17 of the Securitization Act as and when the Bank takes steps/measures as contemplated under Section 13 (4) of the said Act. The learned counsel for the petitioner makes a statement that during pendency of the petition, an order under Section 13 (4) for taking a symbolic possession has been issued. It is, therefore, apparent that the petitioner has a remedy of an appeal under Section 17 of the Securitization Act before the Debts Recovery Tribunal at Nagpur. The petitioner is, therefore, relegated to the remedy of an appeal before the Debts Recovery Tribunal and the petition is disposed off accordingly. However, if the appeal is filed within a period of two weeks from today, the Bank will not take steps to take physical possession of the mortgaged property for the said period of two weeks, and if there is an issue of limitation in filing the appeal, the period of pendency of this petition from 5th April, 2008 shall be taken into consideration by the Tribunal. We also make it clear that the prayer for interim stay in the appeal to be 4 filed by the petitioner shall be considered by the Tribunal on its own merits and without being influenced by the ad interim order passed by us. Judge Judge |Hedau|