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2011 Supreme(Del) 836

IN THE HIGH COURT OF DELHI AT NEW DELHI
Dipak Misra, Sanjiv Khanna, JJ.
Rakesh Kumar Khandelwal - Appellant
Versus
Union of India - Respondent
Writ Petition (C) No. 711/2011
Decided On : 14-02-2011

Advocates Appeared:
Mr. Mathews J. Nedumpara, Adv. With Mr. R. Majumdar, Advocate for the Petitioner.
Mr. Ruchir Mishra for the Respondent Nos. 1 & 2.

Headnote:

Securitisation of Financial Assets and Enforcement of Security Interest Act, 2002-Sections 13 & 14 – Constitution of India – Article 226 – Territorial Jurisdiction – Challenge to notice issued under the Act – Notice issued at Jaipur – Place where legislation was enacted does not give rise to cause of action – Writ petition, held to be not maintainable at Delhi.

Sanjiv Khanna, J.

In spite of the judgment of the Supreme Court in Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 upholding the constitutional validity of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, the petitioner Rakesh Kumar Khandelwal has filed the present writ petition praying for following relief:-

"(a) That the Hon'ble Court be graciously pleased to issue a writ in the nature of certiorari on any other appropriate writ or order quashing and setting aside the Notice dated 8th November, 2010 (Annexure P-1) issued by Respondent No. 3, as null and void;

(b) That this Hon'ble Court be graciously pleased to issue a writ in the nature of prohibition or any other appropriate writ or order prohibiting and restraining the Respondents from proceeding any further in pursuance of the Notice dated 8th November, 2010 (Annexure P-1) issued by Respondent No. 3, particularly from dispossessing the Petitioner of his factory premises situate at:

(c) That this Hon'ble Court be graciously pleased to issue a declaration or an appropriate writ or order, declaring that Sections 13(2), 13(3) and 13(3A) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 are unconstitutional on the ground that they are in violation of the second principle of natural justice namely, nemo potest esse simul actor et judex or nemo iudex in sua causa or nemo debet esse judex in propria causa - no one can be judge in his own cause - and the issue remains res integra;

(d) That this Hon'ble Court be graciously pleased to issue an appropriate writ or order or declaration, declaring that Rule 2(a) of the Security Interest (Enforcement) Rules 2002 is unconstitutional, void and in violation of the first principle of natural justice, namely, nemo debt esse judex impropria sua cause, inasmuch as it permits an officer of a secured creditor/ Bank or any other person or authority exercising powers of superintendence, direction and control of business or affairs of the secured credit to act as an arbiter to determine the lis between the secured debtor and the secured creditor;

(d) That this Hon'ble Court be graciously pleased to issue a writ in the nature of prohibition or any other appropriate writ or order restraining the Respondent Bank from acting as a law unto themselves and forcefully dispossess the petitioner of his properties which are claimed to be the secured assets at the hands of the Bank not to pass any ex-parte orders on an application at the hands of the Respondent Bank under Section 14 of the Securitization of Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002;

(f) That this Hon'ble Court be graciously pleased to issue an appropriate writ or order or declaration, declaring that section 14 of the Securitization of Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 is unconstitutional and void inasmuch as it permits the learned Chief Metropolitan Magistrate/ District Magistrate to order dispossession of the property of a borrower/tenant or third party, whatsoever be his right, on a mere application at the hands of a Bank or Financial Institution, often a simple mortgage, without notice and without hearing him, and thus in violation of Articles 14, 19 and 21 of the Constitution of India or, in the alternative, and may be more appropriately, to read into the said Section an obligation to issue a notice and afford a hearing to the borrower/tenant or third party;

(g) To issue a declaration or an appropriate writ or order, declaring that sub-section (3) of Section 14 of the Securitization of Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 is unconstitutional and void inasmuch as the said Section enables a secured creditor/Bank/financial institution to take possession of the property of a citizen, thereafter sell the same and liquidate the amount allegedl

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