Rajiv Sahai Endlaw, J.

1. Allowed, subject to all just exceptions.

2. The application is disposed of.

3. This intra court appeal impugns the order dated 2nd December, 2014 of the learned Single Judge, of dismissal of W.P. (C) No. 5716 of 2014 preferred by the appellants.

4. The appellants had preferred the said writ petition impugning the notice dated 26th May, 2014 issued by the respondents Oriental Bank of Commerce (OBC) its officers to the appellant under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and seeking a mandamus to the respondents OBC to regularize the cash credit account of the appellants/ petitioners.

5. The learned Single Judge has dismissed the writ petition observing that the Supreme Court in Mardia Chemicals Limited vs. Union of India, (2004) 4 SCC 311 has held that the notice under Section 13(2) is a pre-condition under Section 13(4) of the SARFAESI Act and the remedy available to a borrower can be availed only after the measures under Section 13(4) of the said Act have been taken.

6. Before dealing with the contentions raised by the appellants/petitioners before us, we may notice that the appellants/petitioners had failed to appear before the learned Single Judge on 2nd December, 2014 and the impugned order though dismissing the writ petition on merits is in the absence of the appellants/writ petitioners.

7. Ordinarily, in the absence of the petitioner, it is not open to the Court to dismiss the petition on merits and the dismissal should only be for the reason of default. Though in the said light of the matter, the remedy of the appellants/writ petitioners, instead of preferring this appeal, would have been to prefer an application for setting aside of the impugned order dated 2nd December, 2014 and/or to urge that the dismissal on merits is erroneous but the counsel for the appellants/writ petitioners has not raised the said issue and has argued on merits. In that light of the matter, we also deem it appropriate to consider the merits of the appeal.

8. The counsel for the appellants/writ petitioners has pegged his case on the judgment of the Division Bench of the Andhra Pradesh High Court in M/s. Sravan Dall Mill Pvt. Ltd. vs. Central Bank of India, AIR 2010 Andhra Pradesh 35. The High Court of Andhra Pradesh in the said judgment held that the remedy of judicial review under Article 226 of Constitution of India is available with respect to a decision of a creditor declaring the debtor’s account as an NPA by issuing a notice under Section 13(2) of the SARFAESI Act. However the said remedy was held to be available, because in that case the creditor, after issuing notice under Section 13(2) on 14th June, 2006 and inspite of the debtor representing / objecting under Section 13(3A) there against, neither passed any order on the said representation/objection, nor took any measures under Section 13(4) of the SARFAESI Act. In view thereof, it was held that declaring the account as NPA by itself leads to serious consequences and when measures under Section 13(4) are not taken by the creditor, debtor is also deprived of seeking redressal under Section 17 of the said Act.

9. The respondent OBC, in the present case, issued notice dated 26th May, 2014 under Section 13(2) of the SARFAESI Act. The appellants/writ petitioners claim to have submitted representations dated 18th June, 2014, 16th July, 2014, 22nd July, 2014 and thereafter in or about August, 2014 filed the writ petition from which this appeal arises, as aforesaid, impugning the notice dated 26th May, 2014 under Section 13(2) and seeking a mandamus to the respondent OBC to regularize the account. However, according to the appellants/writ petitioners themselves, the respondent OBC during the pendency of the writ petition obtained orders from the Court of the Chief Metropolitan Magistrate under Section 14 of the Act for taking possession of the secured assets.

10. It i