Important Point – Second application for a different cause of action is maintainable.

JUDGMENT

ANIL R. DAVE, J.

1. Leave granted.

2. The present appeals are directed against the judgment dated 24.08.2011 rendered by the High Court of Calcutta, whereby the High Court has dismissed the revision petition filed by the appellant under Article 227 of the Constitution of India and affirmed the order of the Debt Recovery Appellate Tribunal, Calcutta.

3. The facts of the case, in a nutshell, are as under :

Respondent nos. 2 and 3 are the principal shareholders, directors and persons in charge of Respondent No.1 Company. Respondent No. 4 (ING Vysya Bank) had granted financial assistance to Respondent nos.1 to 3 by way of “Cash Credit facility”. In consideration of the aforesaid loan, Respondent nos.1 to 3 had furnished security in terms of (a) Hypothecation of Book Debts, (b) Equitable mortgage of residential flat bearing no. 1-C at 7/1, Queens Park, Kolkata-700019 and (c) pledge of LIC Policy for an assured sum of Rs.8 lakh in name of Respondent No.3.

4. Respondent nos. 1 to 3 defaulted in the repayment of the loan and thus, the account was classified as “Non-performing Asset” with effect from 1.12.2008 in accordance with the directions of Reserve Bank of India. As on 31st December, 2008, a sum of Rs.37,01,758.49 (Rupees Thirty seven lakh one thousand seven hundred fifty eight and forty nine paise), along with applicable interest @ 15% per annum and penal interest was outstanding against the said Respondents.

5. Accordingly, a notice dated 17th January, 2009 under Section 13 (2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the Act”) read with Rule 9 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as “the Rules”) was served upon Respondent nos.1 to 3 calling upon them to pay the aforementioned sum along with future interest within 60 days from the date of the said notice and they were also instructed not to create any third party interest in the secured assets by way of sale, lease or otherwise. The aforesaid notice was duly replied to by Respondent No.1 Company vide letter dated 14th March, 2009 by disputing the amount and requesting Respondent no. 4 bank to give certain credits. Respondent no.4 gave a reply vide its letter dated 20th March, 2009 to letter dated 14th March, 2009 by asserting that notice dated 17th January, 2009 had been correctly issued as per the provisions of Section 13 (2) of the Act.

6. It is apposite to state that Respondent No. 4 bank vide possession notice dated 10th August, 2009 took “symbolic possession” of the property in question i.e. Residential Flat No. bearing 1C (1st Floor) situated at premises no. 7/1, Queens Park, Kolkata-700019 (hereinafter referred to as “the flat”) which was in the names of Respondent nos. 2 and 3.

7. Being aggrieved by said notice dated 10th August, 2009, Respondent nos. 1 and 3 preferred application no.92/2009 under Section 17 of Act, 2002 on 15th September, 2009 against Respondent no.4 bank by stating that the act of taking symbolic possession of the flat in question was illegal, without jurisdiction and was in violation of the Act and Regulations made thereunder, primarily for the reason that no advertisement was published in the newspaper in terms of Rule 8 (2) of the Rules and no possession notice under Rule 8 (1) was affixed on the said property and hence, prayed for quashing of notice dated 17th January, 2009 and also for quashing all steps taken under the Act.

8. Taking cognizance of the aforesaid application, the learned Presiding Officer, DRT, Kolkata vide order dated 17th December, 2009 directed Respondent nos.1 and 3 to pay a sum of Rs.15 lakh before 26th December, 2009 and directed the Respondent bank to maintain status-quo and in case the borrowers fail to deposit the said sum before the stipulated date, Respondent no. 4 bank would be at liberty to proceed in accordance with law.

9. Being dissatisfied with the order dated 17th Decembe