Judgment:
ORDER
Tarun Agarwala, J.
1. Heard Shri Ravi Kant, the learned Senior Counsel, assisted by Shri Kushal Kant, the learned Counsel for the petitioners, Shri Siddharth, the learned Counsel for respondent Nos. 3 and 4, and Shri Shashi Nandan, the learned Senior counsel, assisted by Shri Pradeep Kumar, and Shri Ashutosh Srivastava, the learned Counsel for the auction purchaser (respondent No. 5).
2. The respondent Bank filed a claim application in the year 2004 before the Debts Recovery Tribunal for recovery of Rs. 14,97 crores plus interest. During its pendency, a Demand Notice dated 30th September, 2005 was issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act) for Rs. 4,57,04,195.24 plus penal interest. It was alleged in the said notice that the petitioners were required to discharge their liabilities within sixty days and, in the meanwhile, the petitioners were restrained from dealing with the secured assets, in any manner, whatsoever. The secured assets, which was mentioned in the notice, were, Plot Nos. 191 and 192 in Village Mangtai, Bodla Bichpur Road, Agra, and Plot No. 79, in Block A, Sector II. NOIDA.
3. The petitioners submitted their reply to the notice on 11th November, 2005, denying any liability to pay, and contended that no amount was due or payable by them, and that, the notice was liable to be withdrawn. On 16th of December, 2008, a possession notice under Section 13(4) of the Act was issued, intimating the petitioners that possession of Plot Nos. 191 and 192 in Village Mangtai had been taken. Pursuant to the said notice, a publication was made in the newspaper 'Dainik Jagaran' published from Agra on 21st December, 2008.
4. The petitioners, being aggrieved by the issuance of the notice and its publication in the newspaper (Dainik Jagaran), filed an application under Section 17 of the Act before the Debts Recovery Tribunal, and during its pendency, filed an interim application, praying that the sale notice, issued by the respondent Bank, in the meanwhile, was defective, inasmuch as the sale notice for the secured property at NOIDA could not be auctioned since the possession of the plot of NOIDA was not taken under Section 13(4) of the Act. The Debts Recovery Tribunal, by its order dated 10th June, 2009, disposed of the interim application holding that the sale of the property of NOIDA could not be made by the respondent bank, inasmuch as the possession of this plot was not taken under Section 13(4) of the Act, but permitted the respondent Bank to proceed with the sale of the plots located at Agra. The petitioners, being aggrieved by the said order, filed an appeal under Section 18 of the Act, which was dismissed by order dated 13th July, 2009. The petitioners, being aggrieved by the said impugned orders, has filed the present writ petition.
5. Shri Ravi Kant, the learned Senior Counsel submitted that the notice under Section 13(2) of the Act was with regard to the two properties located at Agra and NOIDA, and that, possession under Section 13(4) of the Act was only confined to one property located at Agra, and this procedure, adopted by the respondent Bank, was patently illegal. The learned Counsel submitted that since the notice had been issued under Section 13(2) of the Act for two properties, the respondent Bank were legally bound to take the possession of both the properties and could not take possession of one property only, and therefore, the entire exercise made under Section 13(4) of the Act was patently illegal. The learned Counsel submitted that assuming without admitting that the respondent Bank could proceed against one property under Section 13(4) of the Act, the procedure prescribed under Rule 8(2) of the Rules was not followed, inasmuch as, there was only one publication in the Hindi newspaper 'Dainik Jagaran', whereas, the rule contemplates mandatory publication in two newspapers.
6. In the end, the learned Counsel for the petitioners submitted that a one time settlement had been offered by the Bank, which the petitioners had accepted, in part, and were still willing to adhere to it, provided the onerous condition imposed by the Bank for the withdrawal of the suit and the complaint filed before the MRTP were withdrawn. The learned Counsel also submitted that in view of the fact that certain recoveries were made against the petitioners and the matter was pending consideration, the present proceedings ought to have been stayed and the Debts Recovery Tribunal should not have proceeded with till the disposal of the suit.
7. The learned Counsel for the respondent Bank submitted that new grounds are being raised before this Court, which were neither urged nor argued before the Debts Recovery Tribunal, and that, this Court should refrain itself from going into these questions since the entire matter is still pending consideration in the application of the petitioners, filed under Section 17 of the Act before the Debts Recovery Tribunal.
8. Shri Shashi Nandan, the learned Counsel for the auction purchaser submitted that pursuant to the sale notice, the auction was held, in which respondent No. 5 was found to be the highest bidder and his bid has been accepted and a sale deed has been executed and the possession has been delivered. The learned Counsel submitted that the process of auction has not been challenged in this writ petition and that against an interlocutory order, the present writ petition has been filed.
9. Having heard the learned Counsel for the parties, this Court finds that there is no error in the issuance of notice under Section 13(2) of the Act. It is open to a secured creditor to move against any secured assets and it is not essential that all the secured properties should be put to sale simultaneously. If by sale of one property substantial recovery could be made, it is not necessary that all the properties should be sold or possession be taken under Section 13(4) of the Act. This Court does not find any error in the procedure adopted. In so far as Rule 8(2) of the Rules is concerned, a short counter affidavit has been filed by the respondent Bank which indicates that the publication had been made in two newspapers, and that substantial compliance had been made under rule 8(2) of the Rules.
10. In so far as the question with regard to the OTS Scheme, offered by the respondent Bank, this Court is of the opinion that all these questions should be raised by the petitioners before the Debts Recovery Tribunal which is the appropriate forum. The petitioners has approached the Tribunal against an order passed on the interim application. The application of the petitioners under Section 17 of the Act is pending consideration, in which 5th August, 2009 has been fixed. Consequently, it would be open to the petitioners to raise such grounds before the Debts Recovery Tribunal.
11. In view of the aforesaid, this Court does not find any error in the impugned orders. The writ petition is dismissed. There shall be no order as to costs.