CORAMTHE HONOURABLE MR v. Indian Bank representedby its Authorised Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 05.12.2007CORAMTHE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIANWP.NO.2431/2007 AND M.P.No.1/2007M/s.Abdul Azeez Sons & Companyrepresented by its Managing partner,Mr.K.Iqbal Ahmed,Vellore-632 004...PetitionerVs1.Indian Bank representedby its Authorised Officer, TKM Complex, Katpadi Road, Vellore 632 004.2.The Branch Manager, Indian Banck, Vellore Main Road, Katpadi Road, Vellore 632 004... RespondentsPetition filed under Article 226 of the Constitution of Indiapraying for a writ of certiorarified Mandamus, calling for the recordson the file of the First respondent relating to the impugned noticedated 16.12.2006 bearing Ref.No.Nil and quash the same and consequentlyforbear the respondents from initiating further action under SARFAESIAct.For Petitioner:Mr.D.Bharatha Chakravarthy for M/s.Sai Bharath & IlanFor Respondents:Mr.V.Kalyanaraman forM/s.Aiyar and DoliaORDERContending that the first respondent has issued a fresh noticeunder section 13[2] of the SARFAESI Act, when proceedings are pendingbefore the Debts Recovery Tribunal in respect of the earlier noticeunder section 13[2], the petitioner has come up with the present writpetition.2.Heard Mr.Bharatha Chakravarthy, learned counsel for thepetitioner and Mr.Kalyanaraman, learned counsel for the respondents. https://hcservices.ecourts.gov.in/hcservices/

3.Admittedly, a notice under section 13[2] was issued on 21.10.2002and a possession notice was also issued under section 13[4] on01.07.2004. As against the said possession notice, the petitioner hasalready approached the Debts Recovery Tribunal by way of an appeal undersection 17 of the SARFAESI Act. A conditional order of stay is statedto have been passed in the said appeal and the petitioner claims to havecomplied with the conditional order. The appeal is pendingconsideration still before the Debts Recovery Tribunal.4.At this stage, the first respondent has issued a second noticeunder section 13[2]. Therefore, the petitioner has come up with thepresent writ petition challenging the notice under section 13[2] on theshort ground that the first respondent is not entitled to keep onissuing notices under section 13[2] repeatedly, especially when theprevious notice under section 13[2] and the possession notice undersection 13[4] are under challenge in a regularly filed appeal before theDebts Recovery Tribunal.5.I have carefully considered the submissions of the learnedcounsel for the petitioner.6.The first notice under section 13[2] issued on 21.10.2002,contained two schedules, with Schedule-1 containing the description of 8items of immovable properties and Schedule-2 containing the list ofhypothecated movable properties. When possession notice under section13[4] was issued on 01.07.2004, the said possession notice containedonly the description of four immovable properties leaving out theremaining four out the total of 8 items of immovable properties coveredby the notice under section 13[2]. As against possession notice dated01.07.2004, covering only four properties, the petitioner has alreadygone before the Debts Recovery Tribunal and obtained a conditional ordernot to proceed with the auction sale of those properties, inS.A.No.20/2004 dated 13.12.2004 [later re-numbered as S.A.No.15/2007 onthe file of the Debts Recovery Tribunal-III, Chennai].7.When the appeal is still pending consideration before the DebtsRecovery Tribunal, the first respondent has issued the notice impugnedin the writ petition under section 13[2], dated 16.12.2006 in respect ofthe remaining four properties which were left out under the possessionnotice dated 01.07.2004.8.Mr.D.Bharatha Chakravarthy, learned counsel for the petitionercontended that section 13[2] of the SARFAESI Act speaks only about'notice' and not about 'notices' and that therefore, it is not open tothe first respondent to keep on issuing notices under section 13[2] in apiecemeal manner. Section 13[2] reads as follows:-"13[2]:Where any borrower, who is under a liability to asecured creditor under a security agreement, makes anydefault in repayment of secured debt or any instalmentthereof, and his account in respect of such debt is https://hcservices.ecourts.gov.in/hcservices/ classified by the secured creditor as non-performingasset, then, the secured creditor may require theborrower by notice in writing to discharge in full hisliabilities to the secured creditor within sixty daysfrom the date of notice failing which the securedcreditor shall be entitled to exercise all or any of therights under sub-section [4]."9.According to the learned counsel for the petitioner, when theplain language used in the section refers only to "notice in writing",there is no scope for enlarging the same to mean "notices in writing".10.However, I am unable to countenance the said contention of thelearned counsel for the petitioner for the simple reason that undersection 13[2] of the General Clauses Act, 1897, the words in theSingular would include the plural and vice-cersa in all Central Acts andRegulations. Section 13 of the General Clauses Act reads as follows:-"13.GENDER AND NUMBER:-In all [Central Acts] andRegulations, unless there is anything repugnant in thesubject or context,-[1]words importing the masculine gender shall betaken to include females; and[2]words in the singular shall include the pluraland vice versa."11.Therefore, unless there is anything repugnant in the subject orcontext, words in singular would always include plural. I do not findanything repugnant either in section 13 or in any other section ofSARFAESI Act to exclude the plural, when section 13[2] refers to"notice". Therefore, there is no embargo for the first respondent toissue a fresh notice under section 13[2], in respect of properties,which were not covered by the earlier possession notice under section 13[4] dated 01.07.2004.12.Learned counsel for the petitioner relied upon the decision ofthe Hon'ble Apex Court in NEWSPAPERS LIMITED V. STATE INDUSTRIALTRIBUNAL reported in AIR 1957 SC 532, for the preposition that theprovisions of the General Clauses Act, cannot always be imported intoprovisions of all the Acts. But, the said decision is of no assistanceto the petitioner for the simple reason that, that decision arose out ofthe U.P.Industrial Disputes Act,1947. Under the said Act, unless agroup of workmen joined together and raised a dispute, it would not comewithin the definition of the term "industrial dispute". At the timewhen the aforesaid decision was rendered, the U.P.Industrial DisputesAct had no provision to enable individual workman to raise an industrialdispute. Hence, the word "workmen", indicating the plural, was held notto include the singular, since such an interpretation on the basis ofsection 13[2] of the General Clauses Act was beyond the object and scopeof U.P.I.D. Act, 1947 at that point of time. In other words there was https://hcservices.ecourts.gov.in/hcservices/ something repugnant to the context in the U.P. Industrial Disputes Act,1947, for invoking the provisions of section 13[2] of the GeneralClauses Act.13.But, insofar as the SARFAESI Act is concerned, the scope of theAct, does not prohibit the issue of any number of notices under section13[2]. Therefore, the application of the provisions of section 13[2] ofthe General Clauses Act to the word "notice" found in section 13[2] ofthe SARFAESI Act, is justified.14.Moreover, the original notice issued under section 13[2] dated21.10.2002, covered eight items of immovable properties. The possessionnotice issued under section 13[4] on 01.07.2004 covered only four out ofeight items of properties. There is no embargo under any of the sub-sections of section 13 of the SARFAESI Act for the first respondent evennow to merely issue a possession notice under section 13[4], in respectof the four items of properties not covered by the earlier notice undersection 13[4] dated 01.07.2004. If there can be no embargo for theissue of a fresh possession notice, under section 13[4] in respect ofthe left out properties, there cannot be any embargo for the issue of afresh notice under section 13[2]. Therefore, even on this ground thecontention of the learned counsel for the petitioner cannot be accepted.15.In any event, a writ petition as against a notice under section13[2] is not maintainable. It is always open to the petitioner to givea reply and it is only when the first respondent issues a possessionnotice under section 13[4] that the petitioner is entitled to approachthe Debts Recovery Tribunal under section 17. In this case, thepetitioner has already filed an appeal in S.A.No.15 of 2007 on the fileof the Debts Recovery Tribunal-III, Chennai. Therefore, if and when apossession notice is issued under section 13[4], in pursuance of thenotice impugned in ths writ petition, it is always open to thepetitioner either to seek relief in the appeal already pending beforethe Debts Recovery Tribunal or to file a separate appeal as against thesaid order. In other words, the remedies, open to the petitioner underthe provisions of the SARFAESI Act, are not lost to him since that stagehas not even come.16.Therefore, leaving it open to the petitioner to challenge anypossession notice, as and when issued by the first respondent undersection 13[4] in pursuance of the impugned notice, either in the sameappeal pending on the file of the Debts Recovery Tribunal or by way of aseparate appeal, this writ petition is dismissed. No costs.Consequently, connected miscellaneous petition is also dismissed,Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ apTo1.The Authorised Officer, Indian Bank, TKM Complex, Katpadi Road, Vellore 632 004.2.The Branch Manager, Indian Banck, Vellore Main Road, Katpadi Road, Vellore 632 004.1 cc To M/s.Sai, Bharath & Ilan, Advocate, SR.72009.1 cc To M/S.Aiyar & Dolia, Advocate, SR.72047.W.P.No.2431/2007 NTK(CO)RVL 19.12.2007