A statutory remedy under S. 17 of the SARFAESI Act must be pursued before seeking relief through a writ petition.

1. The petitioners have preferred this writ petition under Art.226 of the Constitution of India seeking declaration that the entire action of the respondent - Diwan Housing Finance Corporation Limited (for short 'DHFC' ) since inception i.e. issuance of notice dated 24.5.2016 under S.13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act' ) is illegal and arbitrary. The petitioners have further prayed for restraining the respondent from taking symbolic and / or actual physical possession of the secured assets described in the impugned notice.

2. Facts of the matter, as projected in the writ petition, are that the petitioners have obtained loan of Rs.1,36,99,000/- on 29.3.2012, however, it committed a default in repayment of the loan, therefore, the respondent - DHFC has issued notice to the petitioners under S.13(2) of the Act for repayment of Rs.1,37,19,888/-, failing which it shall proceed to secure possession of the secured assets under S.13(4) of the Act. The petitioners have submitted reply to the notice mentioning that original borrower Mr. Sanjay Bajpai has died, therefore, proceeding under the Act is not maintainable without issuing notice to the legal heirs of Mr. Sanjay Bajpai. It was also stated that notice has been issued to a dead person namely Mr. Sanjay Bajpai, therefore, it is void ab initio and non est.

3. It is argued by learned counsel for the petitioner that the term 'borrower' defined under S.2(1)(f) of the Act does not include legal heirs of the borrower, therefore, notice under S.13(2) is without jurisdiction. It is also submitted that the provisions of the Act are not applicable to the legal heirs of the borrower, therefore, notice issued by the DHFC is without jurisdiction and is thus not maintainable.

4. The present petition has not been preferred by any legal heirs of the deceased Mr. Sanjay Bajpai. It has been preferred by the Company namely M/s Sanjay Bajpai Builders Pvt. Ltd., through its Director Shri Yogeshwar Shukla, who is also arrayed as petitioner No.2. In the notice (Annexure - P / 1) apart from deceased Mr. Sanjay Bajpai, petitioner No.1 M/s Sanjay Bajpai Builders Pvt. Ltd. is also a co - borrower No.1. Thus the notice was not only against deceased Mr. Sanjay Bajpai but was also against the Company who is co - borrower, therefore, as against the Company, notice under S.13(2) holds good. Since this petition is not preferred by legal heirs of deceased Mr. Sanjay Bajpai, the question as to whether notice also issued to Mr. Sanjay Bajpai is maintainable or not is not germane in this petition. It is not the case of the petitioners that the company is not in possession of the secured assets but it is in possession of legal heirs of deceased Mr. Sanjay Bajpai.

5. Under S.13(3A) of the Act, it is provided that 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 fifteen days of receipt of such representation or objection the reasons for non - acceptance of the representation or objection to the borrower.

6. In the case in hand, the impugned notice was issued to the petitioner on 24.5.2016 which was duly replied by the petitioners on 24.6.2016 (Annexure - P / 2). The objections were considered and rejected by the DHFC within 15 days i.e. on 30.6.2016 (Annexure - P / 3). Once its objections have been dealt with and rejected, the remedy available for the petitioners is to prefer an appeal before the Debts Rec