1. The petitioner herein, was an applicant before the Debts Recovery Tribunal, Ernakulam (hereinafter referred to as 'DRT'), in S.A. No.11/2016 that was preferred impugning a notice received from an Advocate Commissioner, informing the petitioner that physical possession of his property would be taken on a date that was specified in the notice. The S.A. was considered by the DRT, along with a number of similar S.A’s that were filed challenging the action of the secured creditor in approaching the Magistrate under Section 14 of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002, (hereinafter referred to as the 'SARFAESI Act'), and the consequential orders passed by the Magistrate, and notices issued by Advocate Commissioners. By Ext.P6 common order dated 25.05.2017, the DRT found that the S.A’s were not maintainable under Section 17 of the SARFAESI Act, since, according to the DRT, a notice of dispossession, issued by an officer of the court executing the order of a Magistrate, cannot be construed as a “measure” under Section 13(4) of the SARFAESI Act. It is the correctness of this view that is questioned in this O.P (DRT).

2. It might be noticed, in this connection that the DRT had, on an earlier occasion issued a circular, on more or less similar lines, clarifying that in cases where symbolic possession had already been taken, and the period of 45 days had elapsed since then, a subsequent order under Section 14 of the SARFAESI Act contemplating physical possession could not be challenged through a securitization application filed under Section 17. The legality of the said circular was considered by this Court in Sami v. Bank of India – [2011 (3) KLT 554], wherein, after referring to the decisions of the Supreme Court in Authorised Officer, Indian Overseas Bank & Anr. v. Ashok Saw Mill – [(2009) 8 SCC 366], United Bank of India v. Satyawati Tandon & Ors. – [(2010) 8 SCC 110] and Kanaiyalal Lalchand Sachdev & Ors. v. State of Maharashtra & Ors. – [(2011) 2 SCC 782], this court found as follows:

6. At the outset, I would note that although the Supreme Court had upheld the constitutional validity of the Act, it cannot be gainsaid that the Act is a very harsh legislation, which results in very disastrous consequences to the owner of the property against which a measure under S.13(4) of the Act has been taken. That being so, the provisions regarding the remedies provided for persons aggrieved by such action should be construed liberally. No doubt, the Supreme Court has categorically held that no application/appeal would lie against any action taken by the financial institution proper to taking a measure under S.13(4). Therefore, the right to resort to remedies under S.17 would arise only when any one of the measures contemplated under S.13(4) or thereafter is initiated, is his contention. I am of opinion that it is not necessary for an aggrieved person to wait till actual or symbolic possession is taken by the financial institution before resorting to the remedy as provided under S.17. Take for example, a case where a person against whom proceedings under the securitization proceedings have been initiated, has a case that he was not a party to the loan transaction at all, but by fraud or forgery, he has been made a borrower or a surety. In such cases, it would be nothing but sheer injustice to say that he has to wait till the financial institution takes possession and throws him out into the street before he can resort to the only remedy available to him under law, which is filing of an application/appeal under S.17 of the Act. I am of opinion that the rigour of the provisions of the Act should not be taken to that extreme extent to deny even the right of appeal under S.17, which is the only remedy provided to an aggrieved person against a measure under S.13(4). This is all the more so since the Supreme court has time and against held that High Courts should not ordinar