ORDER :

The matter arises out of the rather strange and hyper-technical approach of the Registries in the Debts Recovery Tribunals functioning in the State.

2. As to whether a particular matter can be carried to the Tribunal or not or whether it pertains to the jurisdiction of the Tribunal, has to be decided by the Presiding Officer of the Tribunal and not by Registrars or other officials working in the office. In this case, however, it is the Presiding Officer of the Debts Recovery Tribunal I, Chennai who has passed the impugned order on January 29, 2020 that reads as follows:

"Passed Over.

Matter called again. The application since contained the prayer to set aside the demand notice u/s 13(2) of SARFAESI Act as well as the measure under section 13(4) of the SARFAESI Act, the Registry has taken objection on maintainability of the SAs, as against the demand notice. Heard the Ld. Counsel for the applicant. It is needless to say that an application under section 17(1) of the SARFAESI Act, lies only against the measure if any initiated under section 13(4) of the SARFAESI Act. Notice u/s 13(2) of the Act is not a measure. Thus, no application against the demand notice would lie in terms of section 17(1) of the Act. Therefore, the Registry's objection in so far as the maintainability of the application as against the demand notice is proper. Hence sustained."

3. There is no doubt that a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is not immediately justiciable. However, the original Act was amended after the judgment reported at (2004) 4 SCC 311 (Mardia Chemicals Limited v. Union of India) was rendered to incorporate Section 13(3A) of the Act. The amendment permitted a noticee in receipt of a notice under Section 13(2) of the Act to indicate the defence to the notice which the secured creditor is obliged to consider. If the secured creditor perceives that no defence has been made out in response to the notice under Section 13(2) of the Act, the secured creditor ought to communicate its decision in such regard to the borrower and such creditor would be free to adopt measures under Section 13(4) of the Act.

4. It is possible, in a particular case, that the Reserve Bank of India guidelines for declaring a particular account as a non-performing asset may not have been adhered to by the secured creditor. At least, a theoretical possibility in such regard has always to be accepted. Even in such a scenario, when the borrower is in receipt of a notice under Section 13(2) of the Act, when it clearly appears that the secured creditor may have jumped the gun as the account may not have turned NPA as per the RBI guidelines, the borrower cannot challenge the notice, but may issue an objection thereto for the secured creditor to consider the same.

5. If the secured creditor disregards the objection and proceeds to take a measure under Section 13(4) of the Act, Section 17 of the Act is triggered off and the borrower may approach the jurisdictional Debts Recovery Tribunal in such regard. However, it is open to the borrower at such stage to indicate to the Debts Recovery Tribunal that the notice under Section 13(2) of the Act may not have been in order since the relevant account had not turned non-performing in accordance with the tenor of the RBI guidelines. Even if the objection taken in such regard after receipt of the notice under Section 13(2) of the Act is disregarded by the secured creditor, the borrower is entitled to take the point at the time that the borrower is entitled to approach the Debts Recovery Tribunal under Section 17 of the Act.

6. As to whether there is any merit in the objection taken in such regard is an entirely different kettle of fish. It is possible that there is no merit in such objection and the bank had classified the relevant account as an NPA in accordance with the guidelines.

7. Thus, the objection or the challenge on such ground has