AND W.P.NO.36930 OF 2024 Mr. R.A.Achuthanand, learned counsel appearing for the petitioner.

Mr. Mettu Srinivas Reddy, learned counsel appearing for respondent No.3.

ORDER:

(Per Hon’ble Justice Moushumi Bhattacharya)

1. A Memo filed by the respondent No.3/A.P.Mahesh Co-operative Urban Bank includes the Possession Notice dated 07.05.2022 issued under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002. The Possession Notice refers to a prior notice issued by the respondent/Bank under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) and a Demand Notice dated 16.07.2020 calling upon the petitioner to repay the outstanding amount as on 30.06.2020 along with interest. The Possession Notice also reflects the name of the petitioner herein as the addressee. The petitioner has been described as the borrower in the said notice.

2. Rule 8(1) of the 2002 Rules refers to Appendix IV of the said Rules and authorizes the concerned officer to deliver the Possession Notice as prepared in accordance with the Appendix IV of the Rules. Appendix IV in turn refers to the failure on the part of the borrower to repay the amount and a notice given to the borrower by the concerned officer under Section 13(4) of the SARFAESI Act, 2002.

3. In essence, the above makes it clear that the Possession Notice under Rule 8(1) of 2002 Rules can only be issued after a notice is given under Section 13(4) of the SARFAESI Act, 2002. Section 17(1) of the SARFAESI Act, 2002 provides for filing of an application by any aggrieved person including the borrower against any of the measures under Section 13(4) of the SARFAESI Act, 2002, which has been taken by the secured creditor or the authorized officer.

4. Contrary to the submissions made by the petitioner, it is clear that the Possession Notice issued in the present case is a measure referred to under Section 13(4) of the SARFAESI Act, 2002. Section 13(4) lists four measures which can be taken by the secured creditor on the failure of the borrower to discharge his liability. The first measure i.e., Section 13(4)(a) of the SARFAESI Act, 2002 contemplates possession of the secured assets of the borrower. Therefore, there is no doubt that the Possession Notice constitutes a measure taken under Section 13(4) of the SARFAESI Act, 2002. Once Section 13(4) of the SARFAESI Act, 2002 is triggered, the borrower or any other person for that matter, may file an appropriate application under Section 17(1) of the SARFAESI Act, 2002 before the Debts Recovery Tribunal (DRT).

5. The writ petitioner in the present case has not given any explanation as to why the writ petitioner did not file any such application and instead filed the present Writ Petition invoking Article 226 of the Constitution of India. Hence, we do not find any reason to entertain the Writ Petition since the writ petitioner has an alternative and effective statutory remedy available to it.

6. W.P.No.36930 of 2024, along with all connected applications, is accordingly dismissed without any order as to costs.

7. The interim order granted if any shall stands vacated.

__________________________________ MOUSHUMI BHATTACHARYA, J _____________________________ B.R.MADHUSUDHAN RAO, J Date: 02.04.2025 ynk AND W.P.NO.36930 OF 2024

(Per Hon’ble Justice Moushumi Bhattacharya)

Date: 02.04.2025

ynk