The main legal point established in the judgment is that a borrower's challenge to a notice under the SARFAESI Act may not be maintainable if the borrower has an efficacious remedy available through the appropriate tribunal. The judgment also clarified that there is no statutory prohibition from issuing a fresh notice under Section 13(2) of the SARFAESI Act.

F.M. Ibrahim Kalifulla, J.

The petitioner seeks for issuance of a writ of certiorarified mandamus to call for the records pursuant to the notice dated 8.6.2009 under Section 13(2) of the Securitisation and Reconstruction of Financial Asset and Enforcement of Security Interest Act (in short "SARFAESI Act") and the possession notice dated 23.11.2009 issued under Section 13(4) of the SARFAESI Act, quash the same and to direct the respondent to restore possession of the petitioner.

2. The petitioner in his supporting affidavit would contend that the petitioner approached the respondent/ Bank for credit facilities. On 7.1.1995, the credit facilities sanctioned by the respondent were cash credit limit for Rs.30 lakhs; over and above facility against the supply of bills for Rs.5 lakhs and Rs.5 lakhs towards Bank guarantee, apart from Rs.10 lakhs towards Letter of Credit to procure raw materials.

3. In respect of the action of the petitioner, there was a claim by the respondent before the Debts Recovery Tribunal-II, Chennai, in O.A.No.28 of 2008 for recovery of a sum of Rs.33,18,464/- with interest at 15% per annum from 23.04.2003 with quarterly rests till realisation with costs. The petitioner is stated to have filed a suit before this Court in C.S.No.791 of 2003 which was transferred to the Debts Recovery Tribunal-I, Chennai and thereafter, to the Debts Recovery Tribunal-II, Chennai, and renumbered as Counter Claim No.1 of 2009. There was a notice initially issued under Section 13(2) of the SARFAESI Act on 19.9.2003. The petitioner sent his objection to the said notice on 17.12.2003. The petitioner also filed a Writ Petition, W.P.No.46951 of 2002 which was dismissed by this Court on 29.4.2003 giving liberty to the respondent/ Bank to proceed with its claim. The respondents claim in O.A.No.28 of 2008 and the petitioners Counter Claim No.1 of 2009 were disposed of by a common order by the Debts Recovery Tribunal-II, Chennai, on 4.2.2009. The Debts Recovery Tribunal in its ultimate conclusion held that the respondent/Bank is entitled for recovery certificate to recover a sum of Rs.33,18,464/- with interest at 15% per annum with quarterly rests from 23.4.2003 till realisation apart from costs of the O.A. Such recovery was directed as against defendants 1 to 4 personally and by sale of mortgaged and hypothecated properties scheduled to the O.A. Necessary direction for issuance of Recovery Certificate was also ordered. It is in the above stated background, the petitioner has come forward with the writ petition with a prayer couched above.

4. Mr.K.Shahul Hameed, learned counsel appearing for the petitioner in his submissions contended that the respondent/ Bank having issued a notice under Section 13(2) of the SARFAESI Act earlier on 19.9.2003 to which the petitioner sent his objection on 17.12.2003, is not entitled in law to issue another notice under the same provision as has been now issued under the impugned notice dated 8.6.2009. According to the learned counsel for the petitioner by virtue of the petitioners objection dated 17.12.2003 it will have to be taken that the notice dated 19.9.2003 issued by the respondent stood closed and the respondent/ Bank is estopped from issuing any notice under the provisions of the SARFAESI Act. Learned counsel also contended that entertaining a fresh notice under Section 13(2) of the SARFAESI Act would otherwise, revive a time barred claim of the respondent which cannot be permitted. Learned counsel also contended that since the impugned notice issued under Section 13(2) of the SARFAESI Act dated 8.6.2009, is patently illegal and since the petitioner has no other remedy, the petitioner seeks to quash the said notice.

5. As against the above submissions, Mr.J.Radhakrishnan, learned counsel appearing for the respondent/Bank after bringing to our notice the substantive claims of respective parties which were considered by the Debts Recovery Tribunal-II, Chennai, in O.A.No.28 of 2008 and Counter