1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No. 64 of 2008 [M/s. Shashi Bio Fuels Pvt. Ltd., & ors. Vs. Union of India & ors.] With Writ Petition No.52 of 2008 [M/s. Ekata Agencies & another Vs. Shikshak Sah. Bank Ltd. & ors.] With Writ Petition No.2802 of 2008 [Mayur Sadee Center Vs. Union of India & ors.] With Writ Petition No.3053 of 2008 [M/s. Mahasons Sanitations Vs. Union of Inda & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Writ Petition No.64 of 2008 : Mr. M.G. Bhangde, Senior Advocate with Mr. G.R. Agrawal, Adv., for the petitioners. ----- Mr. S.K. Mishra, Asstt. Solicitor General for respondent No.1. Mr. A.M. Ghare, Adv., for respondent no.2. ----- Writ Petition No.52 of 2008 : Mr. S.S. Khedkar, Adv., for the petitioners. Mr. A.M. Ghare, Adv., for Respondent Nos. 1 and 2. Mr. Girish Chaubey, Adv., for Respondent No.4. ----- Writ Petition No.2802 of 2008 : Mr. R.K. Thakkar, Adv., for the petitioner. Mr. S.K. Mishra, Asstt. Solicitor General for respondent no.1. Mr. N.S. Khubalkar, AGP for Respondent No.2. Mr. S.A. Mohta, Adv., for Respondent Nos. 3 and 4. ----- 2 Writ Petition No.3053 of 2008 : Mr. M.V. Samarth, Adv., for the petitioner. Mr. S.K. Mishra, Asstt. Solicitor General for Respondent No.1. Mr. Khubalkar, AGP for Respondent No.3. Mr. A.M. Ghare, Adv., for Respondent No.4. ----- CORAM : B.H. MARLAPALLE AND A.H. JOSHI, JJ. DATE : 4th December,2008. We have heard Mr. M.G. Bhangde, the learned Senior Counsel and other learned counsel appearing for the petitioners. All these petitions raise a similar grievance, i.e. vires of the notification dated 28th January, 2003, issued by the Govt. of India under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 [“The Securitization Act”, for short]. In short, it is contended that the impugned notices under Section 13 (2) of the Securitization Act have been issued without the authority in law and, therefore, the petitioners pray for a declaration that :- [a] the notification dated 28th January, 2003 issued by the Union of India is not applicable to the Co-operative Banks, and 3 [b] the action taken under the Securitization Act and impugned in these petitions be quashed and set aside. There is no dispute that the notification dated 28th January, 2003 was a subject-matter of challenge before the Nagpur as well as Aurangabad Benches of this High Court, and the challenge to the notification has been turned down. Our orders are a subject-matter of challenge before the Apex Court in Special Leave Petition [Civil] No. 17573/2007 arising from Writ Petition No. 2672 of 2007 decided by the Aurangabad Bench of this High Court. From time to time, interlocutory orders have been passed by the Apex Court in the said Special Leave Petition. Admittedly, as of now, the notification dated 28th January, 2003 has not either been stayed or set aside by the Apex Court and, therefore, in our considered opinion, the Co- operative Banks stand covered under the Securitization Act. The impugned notices have been issued under Section 13 (2) of the Securitization Act and further measures under Section 13 (4) of the said Act have either been taken, or proposed to 4 be taken, and as and when the action under Section 13 (4) is taken, the petitioners' remedy lies against such an action by way of an appeal under Section 17 of the said Act and, therefore, when a remedy of appeal under a special statute is available, we have taken a view in all the connected petitions that the petitioners must approach the Debts Recovery Tribunal by way of an appeal. We have left all issues open to be agitated in the appeals to be filed. At this stage, Mr. Bhangde, the learned Senior Counsel, submitted that our earlier orders passed in the connected writ petitions directing the petitioners to approach the Debts Recovery Tribunal with an appeal are a subject- matter of challenge before the Apex Court as of now. Be that as it may, so long as the Securitization Act is applicable to the respondents-Co-operative Banks, the petitioners' remedy under the said Act, and more particularly of filing an appeal against the impugned orders, i.e., an order either passed or to be passed under Section 13 (4), is not taken away. Hence these petitions are disposed off with liberty to the petitioners to approach the Debts Recovery Tribunal at Nagpur, and if the appellate proceedings are initiated within a period of four weeks, the orders of status quo, 5 if any, granted in these petitions, shall continue to operate for the said period. In cases where the action under Section 13 (4) has not been taken as of now, physical possession of the subject property will not be taken either by the respondent-Bank for a period of four weeks from taking action under Section 13 (4) of the Securitization Act, and in view of this protection, the order of status quo, if any, stands vacated in all such cases. In case an issue regarding delay caused in filing the appeal arises, the period of pendency of this petition shall be taken into consideration. Judge Judge |Hedau|