Prematurity of the petition seeking to quash a notice issued under Section 13 (2) of the SARFAESI Act.

JUDGMENT :

Ravindra Maithani, J.

By means of instant petition, the petitioner seeks the following reliefs:-

“(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 09.08.23 (Annexure No.09) issued in purported exercise of powers under section 13 (2) of the Securitisation of Security Interest Act, 2002 passed by Authorized Officer Uttarakhand State Co-Operative Bank Limited (Apex Branch), Administrative Building, Nainital Road, Haldwani (Respondent no.1).

(ii) To issue a writ, order of direction in the nature of Mandamus directing the respondent not to proceed with their action under section 13 (2) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the petitioner.

(iii) Pass any other or further order (s)/writ (s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.

(iv) Award the cost of the petition to the petitioners.”

2. Heard learned counsel for the parties and perused the record.

3. It is the case of the petitioner in order to establish a solar power project, he took loan of Rs.2,70,00,000/- Lakh from the respondent no.1, the Uttarakhand State Cooperative Bank Limited, Nainital (“the Bank”). In the month of December, 2020, the respondent no.1 the Bank declared the account of the petitioner as Non Performing Asset (“NPA”) w.e.f. 01.04.2018. It compelled the petitioner to file a reference under Section 70 of the Uttarakhand Cooperative Societies Act, 2003 (“the Act”). An award was given on 31.03.2021, which according to the petitioner was accepted by the respondent no.1 the Bank. It is the case of the petitioner that on 09.08.2020, the petitioner received a notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“the SARFAESI Act”) from the respondent no.1 Bank, which he replied on 04.09.2020. Now petitioner seeks quashing of the notice issued under Section 13 (2) of the SARFAESI Act.

4. Learned Senior Counsel appearing for the petitioner would submit that in the year 2020, the respondent no.1 the Bank had declared the account of the petitioner NPA w.e.f. 01.04.2018 against which the petitioner sought the remedy under the provision of the Act, an award was given. The award was accepted by the respondent no.1, the Bank. But now, against a notice under Section 13 (2) of the SARFAESI Act has been issued. Learned Senior Counsel would submit that, at this stage, the provisions of Section 17 of the SARFAESI Act cannot be invoked and the petitioner cannot ventilate his grievance under the SARFAESI Act. He has given a reply, on which a decision has yet not been taken.

5. Learned counsel for the Bank would submit even the petitioner has not complied with the terms of award and the petition is premature.

6. Section 13 sub Section (1) (2) (3) and (3-A) of the SARFAESI Act are as follows:-

“13. Enforcement of security interest.-(1) Notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act.

(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4):

Provided that-

(i) the requirement of classification of secured debt as non-performing asset under this sub-section shall not apply to a borrower who has raised funds through issue of debt securities; and

(ii) in