IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18565 of 2010 M/S Madhavi Hotels (P) Ltd., Having Its Registered Office At A-302 Krishna Galaxy Datta Mandir Road, Santa Kruz (East), Mumbai And Place Of Business At Hotel Ganga Residency, Rambagh Kila, Darbhanga, Bihar Through Its Managing Director Sri Bal Krishna Jha, S/O Yogindra Jha, R/O Hotel Ganga Residency, Rambagh Kila, P.S.- L.M.U. Campus, Distt.- Darbhanga (Bihar) … Petitioner Versus 1. Union Of India Through Secretary Ministry Of Finance, Govt. Of India, New Delhi 2. Central Bank Of India Through Its Managing Director A Body Corporate Constituted Under Banking Companies Acquisition And Transfer Of Undertaking Act, 1970 Having Its Head Office At Chandramukhi, Nariman Point, Mumbai 3. Authorized Officer, Central Bank Of India, Regional Office, Alalpatti, Darbhanga 4. The Branch Manager, Central Bank Of India, Bela Industrial Estate Branch, Darbhanga 5. Residing Officer, Debt Recovery Tribunal, 34, Bank Road, Lodipur, Patna … Respondents ---------------------------------- For the Petitioner : Mr. Arbind Kumar Jha, Advocate For the Respondent-Bank: Mr. Ajay Kumar Sinha, Advocate For the Union of India : Mr. P. L. Jaiswal, C.G.C. ---------------------------------- 04/ 17.11.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner for the following reliefs :- (i) For a direction to respondent no.3 to recall the sale notice to the extent it relates to the assets & properties of the petitioner Company and amend the sale notice dated 11.10.2010 to the extent to exclude the properties of the company i.e. building, plant & machinery and goods hypothecated with the respondent Bank for the reason that the action of the Authorised Officer to proceed to sale the properties of the company without taking action under section 13(4) of the 2 Securitization and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 (hereinafter referred to as `the SARFAESI Act’ for the sake of brevity) is illegal and without jurisdiction. (ii) For a direction to respondent Bank to enter into compromise waiving interest as directed by Hon’ble Tribunal or to implement restructuring of the account as approved by the Bank by letter dated 30.04.2009 waiving the condition “The Total Landed Property must be transferred in the name of the Company by the Directors/Guarantors before implementing this package” because this condition is forbidden by law and is of such nature that, if permitted, it would defeat the provisions of law”. (iii) For a direction to respondent no.3 to proceed against only such portion of the property which was the subject matter of attachment under Rule 8 of Security Interest Act, 2002 and was published in Hindi Daily on 31.01.2010 and further direction to company the mandatory provision of Rule 8 Sub- Rule 6(b), mentioning the secured (iv) For any other appropriate relief/reliefs for which the petitioner is found to be entitled in the facts and circumstances of the case. 3. Although no counter affidavit has been filed by the respondents, but an interlocutory application bearing I.A. No. 4834 of 2011 has been filed by them, in which it was admitted that certain properties included in the sale notice under Rule 8 of the Security Interest (Enforcement) Rules, 2002 was found to be defective as they were not included in the earlier demand notice and possession 3 notice under sections 13(2) and 13(4) of the Act. Hence, it is stated that the Bank has been advised to proceed afresh from the stage of notice under section 13(2) of the Act. 4. In the said circumstances, learned counsel for the respondents prays that this case may be disposed of with a liberty to the respondents to proceed afresh from the stage of notice under section 13(2) of the Act.. He also states that although a proceeding under the provisions of the Recovery of Debt Due to Bank and Financial Institution Act, 1993 ( hereinafter referred to as `the DRT Act’ for the sake of brevity) is pending before the Tribunal but that does not bar the initiation of any proceeding under the `SARFAESI Act’. In this connection, he relies upon a decision of the Apex Court in the case of Transcore vs. Union of India and others, treported in 2008 (1) S.C.C. 125 (paragraphs 37, 65 & 69). 5. On the other hand, learned counsel for the petitioner submits that no proceeding under the SARFAESI Act can be initiated as the matter is pending before the Debt Recovery Tribunal under the provision of section 19 of the DRT Act. He also argues that both are complete course, but section 37 of the SARFAESI Act and section 34(2) of the DRT Act are pari materia. He also relies upon another decision of the Apex Court in case of Unique Butyle Tube Industry (P) Ltd. vs, U.P. Financial Corporation and others, reported in 2003(2) S.C.C. 455 (paragraphs 3 & 9). 6. Considering the averments made by learned counsel for the parties, it is quite apparent that the respondents had impliedly admitted that the proceeding under the SARFAESI Act was 4 defective, specially the sale notice, which was not in accordance with earlier notices under sections 13(2) and 13(4) of the SARFAESI Act and in that circumstance the respondents want to initiate a fresh proceeding from the stage of section 13(2) of the SARFAESI Act. 7. Taking into consideration the matters in its entirety, this writ petition is allowed ands the entire proceeding in question under the SARFAESI Act including its demand notice under section 13(2), possession notice under section 13(4) of the SARFAESI Act and sale notice under Rule 8 of the Security Interest (Enforcement) Rule, 2002 are hereby quashed. 8. So far the question of initiating a fresh proceeding under the SARFAESI Act from the stage of section 13(2) thereof is concerned, the respondents can initiate such proceeding only if the law provides and so permits. MPS/ ( S. N. Hussain, J.)