IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12466 of 2023 ========================================================

NRS PROJECTS PRIVATE LIMITED Versus HDB FINANCIAL SERVICES LIMITED ========================================================

Appearance:

MR RASHESH SANJANWALA SENIOR ADVOCATE WITH MR SALIL M THAKORE(5821) for the Petitioner(s) No. 1,2,3,4,5,6 for the Respondent(s) No. 1 ========================================================

CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Date : 20/07/2023 ORAL ORDER

1. Heard learned Senior Advocate Mr. Rashesh Sanjanwala with learned Advocate Mr. Salil Thakore on behalf of the petitioners.

2. By way of this petition the petitioners challenge a notice under Section 13(2) read with Section 13(13) of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( hereinafter referred to as “ SARFAESI Act”) issued by the respondent herein to the petitioners.

3. Considering the submissions made by learned Senior Advocate it would appear that while a loan facility had been availed of by the petitioner no.1 from the respondent herein somewhere in the month of November 2013 and whereas properties of the husband of petitioner no. 2 and father of petitioners no. 3 and 4 had been mortgaged with the respondent herein and whereas it would also appear that later on, one of the financial creditors of the petitioner no.1 namely Fedbank Financial Services Limited had filed a Company Petition before the National Company Law Tribunal, Ahmedabad against the petitioner no.1 under Section 7 of the Insolvency and Bankruptcy Code, 2016 ( hereinafter referred to as “IB Code”). It would appear that vide an order dated 25.07.2019 the NCLT admitted the petitioner no.1 into the Corporate Insolvency Resolution Process ( CIRP). It would also appear that the Interim Resolution Professional had made a public announcement in local newspapers inviting creditors to submit their claims and whereas it would appear that the respondent herein had never submitted their claims against the petitioner no.1 before the Interim Resolution Professional. It would also appear that thereafter the resolution professional had published notices calling for expression of interest from proposed resolution applicants and whereas vide a meeting of the committee of creditors held on 07.09.2020, the resolution plan as regards the petitioner no.1 had been approved. It also appears that thereafter, the petitioner no.1, had sent a legal notice to the respondent to release the mortgage and return the original title deeds and whereas it is at that stage and since no reply had been received thereto an Interlocutory Application No. 933 of 2022 had been filed by the petitioner no.1 herein. It would appear that around that time, the respondent had issued notice under Section 13(2) of the SARFAESI Act. Prima facie, though it would appear that issuance of notice more particularly issuance of notice under Section 13(2) and objecting thereto and rejection of such objection by the secured creditor would not confer any right upon the borrower to prefer an application before the Debt Recovery Tribunal under Section 17 and whereas, according to the submissions made by learned Senior Advocate Mr. Sanjanwala, what is questioned in the present petition is the very applicability of the SARFAESI Act more particularly after the resolution plan had been approved.

4. Learned Senior Advocate relying upon decision of the Hon’ble Apex Court in case of Ghanashyam Mishra and Sons Privatae Limtied vs. vs Edelweiss Asset Reconstruction Company Limited reported in 2021(9) SCC 657 has inter alia submitted that once the resolution plan has been approved and whereas even prior thereto, if upon the notice being issued by the Interim Resolution Professional inviting claims from required stake holders and whereas if a creditor does not stake his claim in the process involved, then upon the plan being approved, the