Smt. Ranjana Desai, J.

1. The question which arises in these writ petitions is whether while dealing with a written request made by a secured creditor under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short, “the NPA Act”), the Chief Judicial Magistrate or the District Magistrate as the case may be is required to give notice to the borrower or any person who may be in possession of secured asset and give him a hearing.

2. For the sake of convenience we propose to deal with Criminal Writ Petition No.2767 of 2006. Our judgment in this petition on the main issue will be applicable to all petitions. We have heard the learned counsel appearing for the petitioners in Criminal Writ Petition Nos.2767 of 2006, 27 of 2007 and 124 of 2007. We have also heard Mr. Subhash Zha, the learned counsel appearing for the petitioners in Criminal Writ Petition No.343 of 2007. Senior counsel Mr. Dwarkadas and Mr. D'Vitre and the learned counsel Mr. J.P. Shah have also made submissions. We have heard them on their request, though the petitions in which they are appearing have been disposed of by separate orders.

3. We have also heard Mr. Borulkar, the learned Public Prosecutor who appears for the respondent-State. Mr. Toor, Ms. Rathina Maravarman and Mr. Punwani, who appear for the respondent-banks or financial institutions in these writ petitions have also made submissions. We have also heard Mr. Collabawalla.

4. We may briefly refer to the facts averred in Criminal Writ Petition No.2767 of 2006. Petitioner 1 is a proprietary concern of petitioner 2. Petitioner 3 is a guarantor for the debt of petitioners 1 and 2.

5. According to the petitioners, they were banking with respondent 1, the Indian Bank. Respondent 1 vide their sanction letter dated 24/1/2002 sanctioned open cash credit facility (stock and book debts) to the petitioners. Thereafter, the said facility was increased to Rs.50 lakhs on the terms and conditions set out in the sanction letter dated 27/8/2002. The petitioners mortgaged Flat No.1, Ground floor, Shiv Kailash Co-op. Housing Society, Plot No.95, Sion (West), Mumbai 400 022, (for convenience, “the said flat”). The said flat is thus the secured asset of respondent 1.

6. According to the petitioners, respondent 1 filed Original Application No.127 of 2005 before the Debt Recovery Tribunal (for short, “the DRT”) against the petitioners. On 10/11/2006, the DRT passed a decree against the petitioners.

7. It appears that since the petitioners failed to repay the debt, respondent 1 issued a notice dated 27/8/2003 under section 13(2) of the NPA Act and called upon the petitioners to pay sum of Rs.62,47,919/- within sixty days from the date of the notice.

8. According to the petitioners, vide their letter dated 24/11/2005, they sent a reply to the said notice. It is the case of the petitioners that respondent 1 did not communicate to them the reasons for not accepting the said reply. According to the petitioners, therefore, in the light of the judgment of this court to which we shall soon advert, the notice dated 27/8/2003 must be quashed.

9. The case of the petitioners further is that respondent 1 filed an application in the Court of the Chief Metropolitan Magistrate, Esplanade, Mumbai, under section 14 of the NPA Act, praying for assistance to take possession of the said flat. By order dated 27/9/2006, the learned Chief Metropolitan Magistrate allowed the said application. The petitioners have challenged the said order in this writ petition.

10. Before we deal with the attack on the impugned order, we must note that affidavit has been filed by petitioner 2 reiterating that the notice sent by respondent 1 under section 13(2) of the NPA Act has been duly replied by the petitioners on 24/11/2005. However, respondent 1 has failed to comply with section 13(3A) of the NPA Act i.e. the reasons for not accepting the petitioners' reply have not been communicated to the