The amendment of the pecuniary jurisdiction of the Debts Recovery Tribunal does not affect the statutory recourse available to the petitioner under Section 17 of the SARFAESI Act.

JUDGMENT :

Sharad Kumar Sharma, J.

Brief facts of the present writ petition are, that the admitted position which had emerged as per the pleadings itself, is that the late father of the petitioner, who was a beneficiary of a financial assistance, which had been extended by the respondent/secured creditor, whereby he was advanced with loan facility. In lieu thereof, certain property was mortgaged for the purposes of extension of the financial assistance by the respondent. Ultimately, the father of the petitioner had met with the sad demise on 25.12.2013, hence, the petitioner, being the legal heir, he would be liable for all the assets and including the liabilities inherited of the late father, including meeting out the outstanding loan liability, which was standing against the late father of the petitioner, as against his Loan Account No. 603563997, where the amount as depicted on 23.10.2019, was assessed to be Rs. 13,30,043/-.

2. Due to commission of default, the respondent/secured creditor had initiated the proceedings under the SARFAESI Act, by issuing Notice dated 02.07.2019 under Section 13(2) of the Act, and physical possession Notice under Section 13(4) of the Act, was issued against the petitioner as back as on 22.10.2019 and consequently, sale notice was issued on 10.08.2019, which was duly served by affixation as per Rule 3 to be read with Rules 8(1), 8(2), 8(6), 8(7) and 9(1) of the Rules, framed under the Act.

3. Admittedly, the petitioner had filed an SA No. 79 of 2020, Narendra Kumar Vs. HDFC Ltd., before the Debts Recovery Tribunal, which was adjudicated on merits on 06.01.2021, whereby the learned DRT had issued the following directions:-

“In case Applicant deposits the remaining dues after receiving the fresh calculation of outstanding dues by 31.01.2021, Respondent F.I. shall withdraw all its proceedings initiated against the secured asset in question and shall relese mortgaged documents to the person entitled to receive the same, if not required in any other loan account or there is no legal impediment to return the same in accordance law.

However, in case after receipt of the fresh calculation of trhe outstanding dues from the Respondent F.I. the Applicant fails to liquidate the dues in the stipulated period as above; Respondent F.I. is at liberty to proceed a fresh against the secured asset under the S.A.R.F.A.E.S.I. Act, 2002 in terms of Rule 8(6) & 9(1) of Security Interest (Enforcement) Rule, 2002 in accordance with law in continuation of the current proceedings to recover its legitimate dues.

In view of above S.A. is disposed of accordingly. Pending I.A.s, if any, also stand disposed of.

Registry is directed to provide the copy of this order to all the parties as per rules as well as through e-mail and also upload on the official website of DRT.

After due compliance, the file be consigned to record.”

4. The learned counsel for the petitioner contends, that the said directions were admittedly not complied with and the respondent had still proceeded to resort to the Tender Sale Notice, as issued on 30.12.2021, qua the petitioner, whose name was shown at Sl. No. 5, as against the property, which was shown to have been mortgaged and which was supposed to be put on an auction, which was to be held on 03.02.2022. Deriving his cause of action from the said Notice dated 30.12.2021, the petitioner had filed the present writ petition before this Court on 25.01.2022.

5. Upto this stage, there cannot be any dispute that ultimately the issuance of notice, which is now the subject matter of challenge in the present writ petition, is as a consequence of the follow up proceedings, which had flown under Rule 8(6) of the SARFAESI Act, and the Rules framed therein and in that eventuality, appropriate statutory recourse available to the petitioner would have been to approach the DRT under Section 17 of the Act. Section 17 of the SARFAESI Act reads as under:-

17. [Application against measures to recover secured debts].—(1) Any person