The main legal point established in the judgment is the jurisdiction of a Co-operative Bank to proceed under Section 13 of the SARFAESI Act, based on the Notification and Section 2(c)(v) of the SARFAESI Act.

Common Order : (S.J. Mukhopadhaya, J.)

1. These Writ Petitions have been preferred by the borrower/guarantor, raising common question of law, pursuant to common proceedings pending before the Debts Recovery Tribunal (for short, the DRT)-I, Chennai. Therefore, they were heard together and decided by this common order.

.2. The borrower in these cases is M/s.NEPC Agro Foods Limited (writ petitioner in W.P.No23660 of 2008). The lender is M/s.Janata Sahakari Bank Limited (first respondent in W.P.No.23660 of 2008 and second respondent in W.P.No.9930 of 2008) (for short, the Co-operative Bank), which is registered under the provisions of the Maharashtra Co-operative Societies Act. The petitioner-Raj Kumar Khemka (in W.P.No.9930 of 2008) is the guarantor. The respondent-Co-operative Bank, having given certain credit facilities to the borrower, it initiated proceedings against the borrower before the Co-operative Court No.I, Mumbai and the dispute came to be dismissed by order dated 3. 2006. Against the said order dated 3. 2006, the respondent-Co-operative Bank filed an appeal before the Co-operative Appellate Tribunal, which allowed the case, by order dated 19. 2006 and remitted the matter for fresh trial to the Co-operative Court No.I.

3. In the meantime, the respondent-Co-operative Bank invoked the powers under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short, the SARFAESI Act) and after receipt of reply/objections, dated 13. 2006, submitted by the borrower, being unsatisfied, the respondent-Co-operative Bank invoked Section 13(4) of the SARFAESI Act on 9. 2006. Challenging the said proceedings under Section 13(4), the borrower filed Securitisation Application (appeal) in S.A.No.68 of 2008, which was originally filed in 2006, but got numbered in 2008, view of the fact that there was some doubt as to whether the application under Section 17 of the SARFAESI Act, was maintainable against a Co-operative Bank.

4. It appears that after remand by the Co-operative Appellate Tribunal, after issuance of notice under Section 13(2) of the SARFAESI Act, a consent Award dated 12. 2007, came to be passed by the Co-operative Court No.I, Mumbai, by which the borrower(s) agreed to pay Rs.15,51,00,000/- as full and final settlement of all the dues within a time, but in view of the non-payment of the full amount in terms of the said consent Award, the respondent-Co-operative Bank proceeded with, under Section 13(2) notice, followed by the measures taken under Section 13(4) of the SARFAESI Act.

.5. At this stage, one of the guarantors, namely Raj Kumar Khemka filed Writ Petition No.9930 of 2008 before this Court, forbearing the respondent-Co-operative Bank from exercising the powers under the SARFAESI Act, insofar as the loan account of the borrower-M/s.NEPC Agro Goods is concerned. Initially, no interim order was passed and on 30.9.2008, when the Writ Petition was being heard, this Court passed the following interim order:

."During the pendency of W.P.No.9930 of 2008, the respondents may auction-sale the mortgaged property(ies) (secured asset(s)), but will not confirm the sale, nor take possession of the same, if not yet taken, without prior permission of the Court. "

6. While Writ Petition No.9930 of 2008 was pending, the respondent-Co-operative Tribunal sold the mortgaged property(ies) situated at Hyderabad by a private treaty. It is alleged that the said sale was bad without the consent of the borrower or the owner of the property(ies) and without following the procedures laid down under the Security Interest (Enforcement) Rules, 2002. The respondent-Co-operative Bank, having intimated the matter relating to the sale of the property(ies) by letter dated 28. 2008 to the borrower-M/s.NEPC Agro Foods Limited, the second Writ Petition in W.P.No.23660 of 2008 has been preferred by the borrower.

7. It is informed that Securitisation Application (appeal) under S