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TMI Blog2004 (1) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) of the Act. The submission is that the appeal under section 17 would lie only against the measures taken under section 13(4) of the Act and not otherwise. As a consequence of the scheme of the Act, it is being urged that the petitioners would not be allowed to obstruct the action which is taken under the provision of the aforesaid Act, by allowing them to challenge the action step-by-step, by filing a writ petition at intermittent stages, when the Act itself does not envisage any such remedy being provided to the defaulter and the only statutory remedy which has been provided can be availed under section 17 in the manner provided therein. 4. Learned counsel for the petitioner Shri A.K. Jauhari, in response to the preliminary objection submits that since no appeal under the Act can be filed against the present impugned notice/order, the same not being a measure taken within the meaning of section 13(4) of the Act, the constitutional remedy under article 226 of the Constitution of India could not be said to be barred nor the same is dependent upon any statutory remedy being specifically provided under the Act against each and every action of the Bank. 5. It is not in dispute by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset' has been defined in section 2(1)(l), which means debt or receivables and includes-- (i )a claim to any debt or receivables or part thereof, whether secured or unsecured; or (ii )any debt or receivables secured by mortgage or, or charge on, immovable property; or (iii )a mortgage, charge, hypothecation or pledge of movable property; or (iv)any right or interest in the security, whether full or part underlying such debt or receivables; or (v )any beneficial interest in property, whether movable or immovable, or in such debt, receivables, whether such interest in existing, future, accruing, conditional or contingent; or (vi)any financial assistance; "Secured asset" and "Secured creditor" have also been defined in section 2(zc) and 2(zd), whereas "Securitisation" and "Securitisation Company" have been defined in section 2(z) and 2( za). 12. Chapter III of the Act is with respect to the Enforcement of Security Interest. Section 13(1) to section 13(4) and section 17, which are relevant to the instant controversy are being quoted below:-- "13. Enforcement of security interest.--(1) Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy-five per cent of the amount claimed in the notice referred to in sub-section (2) of section 13: Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. (3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and rules made thereunder." 13. Section 13(1) is the charging section which confers power and vest an authority with any secured creditor to enforce any security interest created in favour of any secured creditor without the intervention of the Court or the tribunal, by such creditor, in accordance with the provision of this Act. 14. The enactment thus clearly ousts the jurisdiction of the Court in the matter of actions for enforcement of security interest under section 13(1) of the Act. 15. The said section starts with the non obstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers the authority upon the secured creditor to take measures given therein for recovering the secured debt as provided in sub-clauses a, b, c, and d of section 13(4), in case the borrower fails to discharge his liability in full within the specified period prescribed under sub-section 2, namely, from the date of receipt of notice under the aforesaid provision with the details given therein as provided under sub-section 3. The notice under section 13 being the statutory notice must conform to the provisions of sub-sections 2 and 3 of section 13 and thus must contain all particulars as mentioned therein. 21. Coming to the remedy available to such a borrower against whom a notice under section 13(2), has been issued requiring him to discharge his liability within a specified period of sixty days, failing which, measures as provided under sub-section 4 of section 13 would be taken, it would have to be seen that section 13 does not provide any remedy, namely, any right of challenge to any of the action taken under section 13(2), viz., against issuance of the notice under section 13(2). The remedy under the Act has only been provided under section 17 by giving a right to appeal to any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he stage of issuance of notice under section 13(2) also or at any subsequent stages even before measures under section 13(4) are taken then it would be providing avenue of multiple appeals which would be against the spirit of the Act, besides being in violation of the specific provision of appeal, provided in the act. 26. Section 18 provides a further appeal against the order of the Debt Recovery Tribunal to the Appellate Tribunal. 27. The right of appeal is a statutory right, which can be conferred only by the statute or by the statutory rules. The Courts while interpreting the Act or the statutory rules cannot introduce right or a forum for appeal particularly when the statute itself provides the right of appeal against specified orders and also the forum for the purpose. 28. The period of limitation of filing an appeal against the measure taken under section 13(2) is to be counted from the date such measure had been taken. The aforesaid provision is couched in 'past perfect tense', namely, when a fact has already been accomplished only then the appeal would be filed. This is simple and clear interpretation which can be attributed to the words 'may prefer an appeal to the Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant clauses of the aforesaid provision. It would be however, open to the borrower to file objections against the aforesaid notice in case he finds that the amount for which liability is sought to be discharged is not the correct amount, if he has already paid some amount but adjustment of such deposit has not been made and if such discrepancy is brought to the notice of the Bank with due proof of deposit the Bank would be under obligation to correct the amount of demand. 32. Likewise objections can also be filed challenging the competence of the Bank in issuing the notice viz., by showing that the borrower is not a defaulter, within the meaning of the Act. Of course the plea of limitation with respect to the action initiated can also be taken as provided under section 36. The scope of the objection is very limited as once the account under which the debt remains unpaid has been classified as 'non performing asset' all other claims would not be open to be agitated in such intermediary proceedings under the present Act. Of course, the action taken under section 13(4) would be open to challenge in appeal under section 17. 33. Section 37 is a provision which makes the remedy under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken under the Act unless of course it pricks the conscience of the Court and if it is found that the action is wholly arbitrary, without jurisdiction or smacks of mala fides which would result in gross miscarriage of justice. 37. In view of the specified machinery given in the Act including the right to get back the secured assets alongwith appropriate compensation with costs, as may be determined by the Tribunal on finding that the measure taken was wrong or illegal, the borrower is not remedy less so as to allow him to approach the High Court in its extraordinary jurisdiction at every stage. In the light of the reasoning given, the present case, is not such where the High Court would entertain the writ petition. 38. We therefore, decline to entertain the writ petition in the given circumstance of the case at this stage. 39. Learned counsel for the petitioners lastly submitted that the petitioners are ready to make the deposit of the amount whatever is due but since they are not in a position to make the entire deposit in one go they may be allowed to make the deposit in instalments. 40. Shri Sharad Bhatnagar appearing for the Bank, does not object the aforesaid prayer by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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