HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION No.30067 of 2010 Between: Nanda Kumar Menon PETITIONERS AND Andhra Bank .....RESPONDENTS THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION NO.30067 of 2010 Oral Order (Per Hon'ble Sri Justice Ghulam Mohammed) This writ petition has been filed challenging the order dated 11.11.2010 passed in SA No.236 of 2008 by the 2nd respondent-Debts Recovery Tribunal, Hyderabad. The said Securitisation Application was filed by the petitioner herein under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter for short referred to as ‘the Act’) questioning the order dated 9.8.2007 on the ground that action of the 1st respondent-bank in initiating proceedings under the provisions of section 14 of the Act is arbitrary. The 2nd respondent Tribunal took objection with regard to maintainability of the appeal and ultimately dismissed the appeal as not maintainable. Under the impugned order, the Tribunal felt that Section 17 of the Act would be attracted when a party is aggrieved by any of the measures referred to in sub-section (4) of Section 13 are taken by the secured creditor or his authorized officer and, therefore, the application filed under Section 14 of the Act is not covered by Section 17 of Act and consequently held that Section 17 of the Act is virtually not available for questioning the order of the Chief Metropolitan Magistrate in view of the bar under Section 14(3) of the Act. The aforesaid view taken by the Tribunal is challenged in this writ petition by the petitioner. Learned counsel for the petitioners has placed before us the decision of the Division Bench of this Court in M/s/Siddhi Vinayaka Hotels (P) Ltd., v. Union of India in W.P.Nos.26663 and 27553 of 2005, dated 17.2.2006. The very question fell for consideration before the Division Bench and the same was answered in favour of the petitioners by the Division Bench and the relevant portion of the decision is extracted as hereunder: “A conjoint reading of Section 13(4) and 14 makes it clear that the source of power to take possession of the secured assets of the borrower can be traced in Section 13(4) and not under Section 14, which has been enacted as an aid for execution of the decision taken by the secured creditors to take possession of the secured assets or documents. To put it differently the substantive provision entitling the secured creditor to take possession of the secured assets is contained in Section 13(4) and Section 14 merely contains a provision to facilitate taking over of possession without any impediment. If a person feels aggrieved by the action of the secured creditor to take possession of the secured asset, then he can file an application under Section 17(1) before the Tribunal and the Tribunal can, after examining the facts and circumstances of the case and evidence produced by the parties declare that the action taken by the secured creditor is not inconsonance with Section 13(4). The Tribunal can also direct the secured creditor to restore the possession of the secured assets of the borrower. In view of the above analysis of the relevant provisions, we are inclined to agree with Shri Mohan Parasaran that right of appeal/representation available to the aggrieved person under Section 17 can be exercised as and when the secured creditor decides to take possession of the property. He can also challenge order passed by the Chief Judicial Magistrate or the District Magistrate, as the case may be, under Section 14 of the Securitisation Act. If Section 14 is read in the manner indicated above, it is not possible to accept the argument of the learned counsel for the petitioners that the same is violative of Article 14 of the Constitution”. Further, the Division Bench held as hereunder: “In view of the above discussion, we hold that Section 14 of the Securitisation Act does not suffer from any constitutional infirmity. We further hold that the orders passed by the Chief Metropolitan Magistrate, Cyberabad and Collector and District Magistrate, Nellore for appointment of Advocate-Commissioner and the Mandal Revenue Officer cannot be quashed on the ground that the same have been passed without complying with the rules of natural justice. In the result, the writ petitions are dismissed. However, it is made clear that the petitioners shall be free to avail remedy under Section 17 of the Securitisation Act”. We are in respectful agreement with the aforesaid decision of the Division Bench. We are also of the view that the measures taken by the secured creditor under Section 13(4) of the Act include taking possession of the property under Section 14 of the Act read with Section 13(4) is only to enable the secured creditor to take possession by approaching the Chief Metropolitan Magistrate or the District Magistrate for assistance to take possession of the secured asset. The said proceeding under Section 14 of the Act has to be construed as part of the power of the secured creditor under Section 13(4) of the Act. The same being part of the measures taken by the secured creditor is certainly appelable under Section 17 of the Act. Further, sub-clause (3) of Section 14 stipulates that no act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority like Debts Recovery Tribunal would not affect exercising power under Section 17 of the Act to examine the correctness of the measures taken by the secured creditor under Section 13(4) of the Act. We, therefore, of the view that the appeal filed by the petitioners is clearly maintainable and ought to have been heard and disposed of by the first respondent Tribunal on merits. In the result, the writ petition is allowed and the impugned order of the first respondent Tribunal is set aside and the SA is restored to file of the 2nd respondent Tribunal which shall be heard and disposed of in accordance with law. No order as to costs. _______________________ GHULAM MOHAMMED, J ______________________ N. RAVI SHANKAR , J DATE: 6-12-2010 Kk HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION No.30067 of 2010 6-2-2010