JUDGMENT :

Rajesh S. Patil, J.

1. Heard. Rule. Respondents waive service. Heard finally.

2. This Petition is filed under Article 226 of the Constitution of India, by a Guarantor to loan taken by the Borrower Company. The Petitioner has prayed for the following reliefs:-

(a) declare that the Plaintiff is an MSME within the meaning of the MSMED Act of 2006 and the notification S.O. 1432(E) dated 29.5.2015 issued by the Central Government under Section 9 thereof, as also the circulars and guidelines issued by the Reserve Bank of India under Section 10 thereof, which provides for a mechanism of resolution of stress and that no proceedings for recovery under the SARFAESI Act, RDB Act or the IBC will lie, as much as the MSMED Act being a special law qua the aforesaid Acts, and a later law in relation to the RDB Act and the SARFAESI Act, its provisions will prevail over the aforesaid enactments;

(b) declare that the respondent Bank is vested of no enforceable cause of action, right or remedies as against the Petitioner/Principal Borrower since the loss and injury caused to the Principal is far in excess of the claim of the Respondent Bank as against the Principal Borrower/ Petitioner Guarantor, in other words, the Petitioner/ Principal Borrower owe no amounts to the respondent Bank, the claim of the Bank being set-off/adjusted against the claim of the petitioner for damages and compensation;

(c) To grant a writ in the nature of mandamus in favour of Applicant restraining and preventing the Respondent Bank their agents, servants, officers, representatives and/or anyone else purportedly acting on their behalf from taking any action whatsoever under the SARFAESI Act or any other law for the recovery of the amounts which the Respondent Nos. 1 to 2 falsely claim to be due;

(d) To declare that the declaration of a Borrower as willful defaulter results in his civil death and that the Respondent NBFC is vested with no jurisdiction to declare the Applicant as a willful defaulter in as much as there is no law empowering the Reserve Bank or the Respondent Bank/NBFCs and financial institutions to declare a Borrower as a wilful defaulter and the guidelines of the Reserve NBFC of India empowering NBFCs and financial institutions to do so is without the authority of law, utterly illegal, ultra-vires the constitution of laws of the land, illegal and void and quash and set aside all such notifications and guidelines;

(e) To issue a Writ in the nature of Certiorari calling for the entire records, minutes and proceedings leading to the classification of the Applicant’s account as NPA, so too under Section 13(2), 13(3A), 13(4) & 14 of the SARFAESI Act and the Security Interest (Enforcement) Rules, and to quash and set is aside;

(f) Without prejudice to above prayers to direct the Respondent No.1 to 4 Bank to take steps to recover the bad debts suffered by the Principal Borrower from the Respondent No.14 ECGC under the Whole Turn Over Packing Credit Guarantee and other incentives extended by the ECCG to the Respondent No.1 Bank.

(g) To declare that Section 14 of the SARFAESI Act, 2002 is unconstitutional and void in as much as it does not expressly mandate that the powers under the said section ought to be exercised in compliance with the principles of natural justice namely by affording a due opportunity to the borrower/tenant/any other person who has a legal or an equitable right in respect of the property of which the possession is sought to be taken is heard.

(A) Factual Matrix

3. It is the Petitioner’s case that the Petitioner who is a Guarantor is the owner of the building known as “Waghbakriwala Building”, situated at Pitha Street, Fort, Mumbai – 400 001 (for short “the Secured Asset”).

3.1. One Alaska Creations Pvt. Ltd. being the borrower was a Company engaged in the business of export of readymade garments and footwear (for short “the said Company”). The Respondent No.4 (Kiwi International) was a supplier of footwear to the said Borrower Company. As per Res