ORDER :

1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :

"(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to pass the order to quash and set aside notice which is given by the Metropolitan Magistrate dtd. 2/1/203.

(C) Your Lordships may kindly be pleased to pass order of interim relief the notice dtd. 2/1/2023 may kindly be stayed execution, implementation and operation may be stayed.

(D) Any other and further reliefs may kindly be granted in the interest of justice."

2. Brief facts of the case are as under :

The petitioner approached India Home Loan Ltd-respondent No.1 herein for housing loan of Rs.25,00,000/-. In order to secure the due repayment of the aforesaid credit facilities, the respondent No.1 mortgaged the property and 2, Sidheshwari CHS Limited, Behind Sindhwai Temple, Near CTM Cross Road, Ramol, Ahmedabad. On account of defaults committed by the petitioner in repayment of the outstanding dues, the account of the petitioner has been classified as NPA.

The respondent issued notice u/s. 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "SARFAESI ACT")on 20/08/2019 calling upon the petitioner to pay Rs.25,01,737/- with further interest and charges. However, the petitioner has failed to repay the same.

The respondent approached the Court of Chief Metropolitan Magistrate. The Metropolitan Court, Ahmedabad issued notice dated 02.01.2023 under section 14 of the SARFAESI Act to seize the property.

The petitioner approached DRT challenging the said notice by filing Securitization Application Diary No. 655/2022.

Since the DRT-I was not available at that time, the petitioner filed Special Civil Application No.12614 of 2022 before this Court. This Court vide order dated 06.07.2022 directed the respondent-financial institution not to take any coercive steps.

Thereafter, as the petitioner could not remove the office objection in Securitization Application but stay was continued and petitioner has paid Rs.9000/- before the Debts Recovery Tribunal on 28.06.2022.

It is the case of the petitioner that since he was an illiterate person, he could not remove the office objection and therefore, the matter was dismissed for default on 20.08.2022.

In the meanwhile, Special Civil Application No.12614 of 2022 came up for hearing before this Court and this Court by order dated 16.11.2022 relegated the petitioner back to DRT as DRT was available.

The petitioner had in the meanwhile filed restoration application on 6.01.2023 before the Chamber Judge being Securitization Application No.20/2023 in connection with Securitization Application No. 655/2022 which is pending adjudication.

It is the case of the petitioner that fresh notice was issued on 5.01.2023 to take the possession of the property in question.

Being aggrieved by such action on part of the respondents, the petitioner has preferred this petition.

3. Learned advocate Mr. Vaishya submitted that the petitioner has already filed restoration application before the Debts Recovery Tribunal which is pending. It was submitted that during pendency of the application before the DRT, a fresh notice is given by the respondent for taking the possession on 05.01.2023. According to learned advocate Mr. Vaishya, the petitioner has already paid Rs. 10 lakh to respondent No.1. It was therefore, prayed that till the Tribunal hears the restoration application, the petitioner may be protected.

4. In view of the decision of the Apex Court in case of Phoenix Arc Private Limited Versus Vishwa Bharati Vidya Mandir reported in (2022) 5 SCC 345 this petition cannot be entertained at this stage more particularly, when the petitioner has already approached Debts Recovery Tribunal under the provisions of section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

5. The Hon'bl