The availability of remedies under Section 17 for aggrieved parties and the requirement to adjudicate allegations of collusion and fraudulent activity at the appropriate stage.

S.MANIKUMAR, J.

Notice issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as, ''the SARFAESI Act'') is challenged by the petitioner on the grounds that he is neither a borrower nor a guarantor and that he is a third party, whose property documents have been pledged, in collusion with bank officials.

2. Inviting the attention of this Court to the definitions of the word ''borrower'' in Section 2(f) of the Act and ''Secured Creditor'' under Section 2(z) of the SARFAESI Act, Mr.V.Raghavachari, the learned Counsel represented the Counsel on record for the petitioner submitted that the writ petitioner, who had not availed any financial assistance from any bank or financial institutions, would not fall under the definition of borrower, in so also, the respondent No.1, would not fall under the definition of ''secured creditor''.

3. Taking us through the bank statement, the General Power of Attorney dated 16.09.2014 stated to have been executed in favour of an individual, its subsequent cancellation, a criminal complaint lodged against several persons including the Manager of the IndusInd Bank, who has been arrayed as 5th accused, Mr.V.Raghavachari, learned Counsel for the petitioner submitted that when the bank has chosen to exercise the powers under Section 13(2) of the SARFAESI Act, the Writ Petitioner, who is aggrieved over the collusion and fraud committed by the bank with others, has every right to seek for indulgence of this Court under Article 226 of the Constitution of India and that, he need not wait till the bank proceeds with action under the provisions of the Act.

4. Learned Counsel for the petitioner further submitted that both in Mardia Chemicals v. Union of India reported in AIR 2004 SC 2371 and in the decision of this Court in W.P.No.27533/2016 in which one of us, is a party (Hon'ble Mr.Justice Manikumar), status of the borrower/secured creditor, as the case may be, is not disputed, whereas, in the case on hand, the Writ Petitioner, being a third party, and not a borrower/guarantor can always approach this Court under Article 226 of the Constitution of India and thus, the Writ Petition is maintainable.

5. Heard the learned Counsel for the parties and perused the material available on record.

6. In Mardia Chemicals v. Union of India reported in AIR 2004 SC 2371, the Hon'ble Supreme Court has held that notice under Section 13(2) would not give rise to a cause to challenge. However, as per Section 13(3A) of the SARFAESI Act, 2002, if, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower: PROVIDED that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under Section 17 or the Court of District Judge under Section 17A.

7. Section 13(4) of the SARFAESI Act reads as follows:

''13(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-

(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;

(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;

Provided that the right to transfer