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TMI Blog2013 (6) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... fore these cases were heard together and are disposed of by this common judgment. 2. The petitioners in these writ petitions are being proceeded against by the respondent Banks under the provisions of the SARFAESI Act and it is aggrieved by the said action, these writ petitions are filed. 3. In so far as WP(C) No. 8826/12 is concerned, it needs to be mentioned that the petitioner herein is a guarantor of a housing loan and a cash credit facility availed of by his mother. On account of the defaults committed, Ext.P1 notice under Section 13(2) of the SARFAESI Act was issued and since then, at different stages of the proceedings, his mother filed nine writ petitions before this Court. These writ petitions are WP(C) Nos.9701/07, 17332 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 have been incorporated in the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and sub-Sections (6) to (11) of Section 19 Recovery of Debts Due to Banks and Financial Institutions Act, 1993 entail a right in a borrower or secured debtor or guarantor to institute a claim for compensation or damages or other remedies by virtue of a counterclaim/set-off etc., (b) declare that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 be read into the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation to issue a notice and afford a hearing to the borrower/tenant or third party; (f) issue a declaration or a writ or order, declaring that sub-Section (3) of Section 14 of the Securitisation Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 is unconstitutional and void inasmuch as the said Section enables a secured creditor/Bank/financial institution to take possession of the property of a citizen, thereafter sell the same and liquidate the amount allegedly due to the Bank or financial institution without providing for an appeal against the order of the learned Magistrate; 4. Apart from the above, he is also seeking to quash Ext.P1, a notice issued under Section 13(2), Ext.P6 order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debt Recovery Tribunal under Section 17 of the Act, at that stage. 2. As already discussed earlier, on measures having been taken under sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and resources to help in growth of economy of the country and welfare of the people in general which would sub-serve the public interest. 82. We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act and its provisions except that of sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India. 8. Thus, after a detailed examination of the whole issues, the Apex Court has upheld the validity of the Act except that of Section 17(12). Despite this, counsel contended that the issues raised by the petitioners in these writ petitions were not considered by the Apex Court and therefore, according to him, this Court should go into the valid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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