In all these writ petitions, the one common question that arises for consideration is as to whether, without taking possession of the secured asset symbolically or actually by the bank in proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the borrower or anybody aggrieved by the action of the bank can file an application/appeal under section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioners in these writ petitions are persons against whose properties, proceedings under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 have been initiated. Their grievance is that the Debt Recovery Tribunal is not entertaining applications/appeals despite the Banks initiating action to take possession through the Magistrate, which is a measure under Section 13(4) of the Act. The Debt Recovery Tribunal themselves have issued a circular, which is produced as Ext. P5 in W.P(C) No. 17843/11, which reads thus:

"1. It is once again reiterated and brought to the notice of all concerned that following consistent decisions taken by this Hon'ble Tribunal, in true, with pronouncements of the Hon'ble Apex Courts, as far as the Securitization Application concerned, the Securitization Application filed beyond 45 days from the date on which measures, if any, (for instance, in case of possession - either symbolic or physical) taken under Section 13(4) of the SARFAESI Act, 2002 cannot be entertained. It is further clarified that Section 5 of the Limitation Act, 1963 is not applicable to the original SA Proceedings filed under Section 17(1) of the SARFAESI Act.

2. And that no Securitization Application will lie against the order passed under Section 14 of the SARFAESI Act, contemplating the possession of secured assets. In this context it is made clear that a Securitization Application can be entertained only when any of the measures has actually been taken (for instance, in case of possession - either symbolic or physical possession) pursuant to the order of the authorities under Section 14 of the SARFAESI Act, 2002. Needless to state the same position applies to any other measures stipulated under the said Section 13(4).

3. Further, as per the Hon'ble Tribunal's view in a given case when symbolic possession had already been taken and 45 days have elapsed since, then, and that subsequently in order under Section 14 of the SARFAESI Act, 2002 contemplating the physical possession taken, the securitization application cannot be entertained.

4. As such the aforesaid legal position shall be taken note of while presenting fresh Securitization Application before the Registry of this Tribunal."

(Underlining supplied)

2. In all these writ petitions, the petitioners have not been served with any notice of possession and possession has not actually or symbolically been taken by the banks concerned. The banks have straight away approached the concerned Chief Judicial Magistrate or Additional District Magistrate, having jurisdiction under Section 14 of the Act for assistance to take possession of the respective security asset. Some of these petitioners have tried filing an application under Section 17 of the Act before the Debt Recovery Tribunal, Ernakulam. But, the registry of the Debt Recovery Tribunal refused to entertain the same on the ground that unless possession has been taken, the appeal under Section 17 is not maintainable. According to the petitioners, the same is totally wrong, insofar as the very action of filing an application before the Chief Judicial Magistrate or the Additional District Magistrate for assistance to take possession of the secured asset, is a measure under Section 13(4), against which the application under Section 17 of the Act would lie before the Debt Recovery Tribunal. Therefore, the refusal on the part of th