The petitioner could claim a set off in the Original Application filed by the Bank before the DRT and could challenge the SARFAESI Act proceedings before the DRT. Identical writ petition dismissed earlier, leaving liberty to agitate all contentions before the appropriate forum.

The petitioner had filed an identical writ petition [W.P.(C) No.1477 of 2017] against the proceedings initiated by the 4th respondent-Bank for recovery of total outstanding dues in a credit facility under the SARFAESI Act against the mortgaged properties of the petitioner. At the earlier instance, the petitioner had taken up two contentions in the arguments addressed, as to the petitioner being entitled to a set off, which could be agitated only if an Original Application is filed by the respondent-Bank under The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 [for brevity "RDDB Act"]. It was contended that an application, provided under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for brevity "SARFAESI Act"] to the Debts Recovery Tribunal [for brevity "DRT"] against proceedings initiated under Section 13(4), would not be a remedy to agitate the said claim of set off and the Bank having initiated SARFAESI proceedings alone, the petitioner is rendered helpless with no remedy to agitate his contention of set off. A declaration was also sought, in the aforesaid circumstance, that a suit would be maintainable.

2. On the admission of the learned Counsel appearing for the petitioner himself, this Court found that there was a civil suit initiated by the petitioner before the Mumbai City Civil Court. The petitioner's apprehension was that the same would not be entertained, since the Bank has raised a preliminary objection of maintainability. It was also disclosed that the petitioner had filed a Securitisation Application [for brevity "SA"] in the DRT against the proceedings initiated by the Bank, under Section 13(4) and before the Chief Judicial Magistrate, Alappuzha, under Section 14; to take possession of a property situated within the State of Kerala, which was admittedly mortgaged in favour of the respondent-Bank. This Court found that the petitioner could claim a set off in the Original Application filed by the Bank before the DRT, Mumbai and also could challenge the proceedings under the SARFAESI Act, against the mortgaged property lying within the State of Kerala, before the DRT, Ernakulam. The claim of set off already having been taken before the Mumbai Civil Court; any adverse order there would have to be agitated before the jurisdictional High Court. Leaving open such remedies, the writ petition was closed.

3. When this present writ petition came up for admission, it was argued that there was a different cause of action insofar as the respondent-Bank having proceeded with the steps to take possession of a property lying within the jurisdiction of the District Magistrate, Thane under Section 14 of the SARFAESI Act. It is submitted that an application is filed in the SA; pending before the DRT, Ernakulam, which is posted to today the 20th . However the pleadings and the learned Counsel for the petitioner, assert that the petitioner does not consider the remedy to be of 'any avail to him' (sic) and that the 'denial of equity and justice at the hands of the DRT is fait accompli' (sic). There is nothing stated to reveal the reasons for such broad assumptions and immediately it has to be noticed that no copies have been produced in the writ petition, of such an application or SA No. 233/2016 said to have been already filed before the DRT Ernakulam; one proceeding alone of which is seen produced as Exhibit P15 in the writ petition. This obviously was after the order of the CJM, Alappuzha and the District Magistrate, Thane.

4. It was argued that since one of the properties is situated within the State of Kerala and there was also a SA filed against the proceedings taken against that property under Section 14 before the DRT, Ernakulam, the petitioner should be permitted to challenge the order of the District Magistrate, Thane also before the DRT, Ernakulam. Reliance is placed on Mardia Chemicals Ltd. v. Union of India [(2004) 4 SCC