The petitioner has approached this Court challenging Exts. P2 and P5 notices issued by the Secured Creditor invoking the relevant provisions under the SARFAESI Act. The case of the petitioner is that, he has already approached the Civil Court by filing O.S. 219 of 2005, for settlement of accounts and unless and until the same is finalized, no proceedings under the SARFAESI Act will lie.

2. Yet another contention raised by the petitioner is that, in response to the averments in the plaint filed before the Civil Court, the Secured Creditor has filed Ext.P1 written statement, wherein the question of maintainability of the suit is also raised stating that, the proceedings under the SARFAESI Act had been taken much prior to the institution of the suit by issuing notice under Section 13 (2) on 18.12.2004 and hence that the secured Creditor is very much entitled to proceed with such steps under the Act. During the course of the proceedings before the Civil Court, the Secured Creditor issued Ext.P5 notice under Section 13 (2) of the Act again, stating that the earlier notice and records were not traceable (in response to a petition filed by the petitioner for causing production of the details). The specific contention of the petitioner is that, no second notice under Section 13 (2) will lie and hence that the proceedings under the SARFAESI Act, are liable to be declared as unsustainable.

3. With regard to the main prayer i.e. for a declaration that the suit filed by the petitioner before the Sub Court, Kollam for settlement of accounts is not barred under the provisions of the SARFAESI Act, the learned counsel for the petitioner submits that, the bar of jurisdiction is only with regard to the sustainability of the steps taken by the Secured Creditor and to see whether it is in accordance with the provisions of the SARFAESI Act and nothing more. It is also pointed out that, the right of the petitioner to dispute the quantum of liability, as well as other incidental aspects as to the actual amount due are not at all barred and that the petitioner is very much entitled to challenge the same by filing a suit before the Civil Court.

4. With reference to the question of jurisdiction of the Civil Court, right from the beginning, as per the machinery provided by virtue of enactment of the Recovery of Debts Due to Banks and Financial Institutions Act 1993, the jurisdiction of the Debt Recovery Tribunal is clearly dealt with as provided under Section 17 therein and the jurisdiction of the Civil Court was specifically barred as provided under Section 18. As per Section 31 of the Act, the pending cases before the Civil Court were to be transferred to the DRT for proper adjudication, to the extent as provided. It was subsequently, that the Parliament thought of enactment of SARFAESI Act, which was brought into force w.e.f. 21.6.2002. By virtue of the specific stipulations therein the need, necessity and occasion for the secured creditors to have the intervention of the Court/Tribunal was spared and a speeder machinery was provided by enabling the institutions to proceed against the secured assets and to realize the dues.

5. The power vested with the secured creditors as above, invoking the provisions under Section 13 of the Act in the manner stipulated therein, was of course subjected to scrutiny and challenge before the DRT, as provided under Section 17. By virtue of this stringent provision, the power conferred under the Statute was being exercised by different financial institutions in an indiscrete manner, which happened to be challenged in appropriate proceedings and the matter finally came up for consideration before the

Apex Court in Mardia Chemicals Vs. Union of India (2004 (4) SCC 311). It was held that the opportunity given to the debtors under Section 13 (2) cannot be stated as an empty formality and that they are very much entitled to project their grievance by way of statement of objections and it is for the secured credito