The judgment emphasizes the importance of exhausting alternative remedies available under the relevant statute before seeking relief under Article 226 of the Constitution.

Sunil Kumar Sinha, J.

1. The Appellant was served with the impugned notice dated 15-4-2011 (Annexure P-1), by the Respondent, for handing over the possession of the assets/properties on account of outstanding amount of loan which the Appellant did not satisfy even after service of a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act') and expiry of the statutory period thereof. The dates for taking over the physical possession of the properties mentioned in the notice were also fixed by the impugned notice.

2. The Appellant challenged the validity of the said notice by filing a writ petition.

3. The Appellant contended before the Writ Court that the earlier demand notice under Section 13(2) of the Act was not served upon the Appellant-Company as it was served on the Directors, therefore, the earlier notice and the impugned notice dated 15-4-2011 (Annexure P-1) for taking possession of the mortgaged property were bad in law.

4. The Writ Court, considering the contents of the impugned notice and the provisions of Section 13 of the Act and further referring to various decisions of the Supreme Court including the decision of Indian Overseas Bank v. Ashok Saw Mill (2009) 8 SCC 366, held that an alternative efficacious remedy of appeal under Section 17 of the Act was available to the Appellant and declined to entertain the writ petition under Article 226 of the Constitution of India.

5. Mr. B.P. Sharma, learned Counsel appearing on behalf of the Appellant, raised similar contention and argued that the notice under Section 13(2) was not served on the Appellant-Company as such and the same was served on the Directors of the Appellant-Company, therefore, the entire action vitiates. He also argued that the impugned notice was not a measure to recover the secured debt under Section 13(4) of the Act, therefore, an appeal under Section 17 would not lie and the impugned order passed by the Writ Court holding that an efficacious alternative remedy was available to the Appellant deserves to be set aside.

6. Mr. Gautam Bhaduri, learned Counsel appearing for the Respondent on Caveat Petition No. 357/2011, submitted that the notices were received by the individual Director on behalf of the Company, therefore, the argument that the notice was not served properly cannot be entertained. He also opposed the argument relating to Section 13(4) of the Act.

7. We have heard learned Counsel for the parties at length and have also perused the records of the Writ Court.

8. Section 17 of the Act provides that any person (including borrower), aggrieved by any of the measures referred to in Sub-section (4) of Section 13 taken by the secured creditor or his authorized officer under Chapter III of the Act, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within the specified period. This makes it clear that the borrower has every right to file an appeal if he is aggrieved by recourse to any measure by the secured creditor under Section 13(4) or the authorized officers under Chapter III. Mr. Sharma has argued that no measures were taken under Sub-section (4) of Section 13 till the issuance of impugned notice, therefore, the statutory appeal would not lie and the writ petition of the Appellant would have been entertained.

9. Clause (a) of Sub-section (4) of Section 13 provides that in case the borrower fails to discharge his liability in full within the period specified in Sub-section (2) of Section 13, the secured creditor may take recourse to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured assets to recover his secured debt. The contents of the impugned notice (Annexure P-1) would show that by the said notice, the secured creditor has directed the borrower to remain available at the s