IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.12.2007
CORAM
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
W.P. No.2431 of 2007
AND
M.P. No.1 of 2007
M/s.Abdul Azeez Sons & Company
Represented by its Managing partner Mr.K.Iqbal Ahmed
Vellore 632 004. ..Petitioner
Vs
1. Indian Bank
Represented by its Authorised Officer
TKM Complex
Katpadi Road
Vellore 632 004.
2. The Branch Manager,
Indian Banck
Vellore Main Road
Katpadi Road
Vellore 632 004. ..Respondents
Petition filed under Article 226 of the Constitution
of India praying for a writ of certiorarified Mandamus,
calling for the records on the file of the First
respondent relating to the impugned notice dated
16.12.2006 bearing Ref.No.Nil and quash the same and
consequently forbear the respondents from initiating
further action under SARFAESI Act.
For Petitioner : Mr.D.Bharatha Chakravarthy
for M/s.Sai Bharath & Ilan
For Respondents: Mr.Kalyanaraman for
M/s.Aiyar and Dolia
ORDER
Contending that the first respondent has issued a
fresh notice under section 13[2] of the SARFAESI Act,
when proceedings are pending before the Debts Recovery
Tribunal in respect of the earlier notice under section
13[2], the petitioner has come up with the present writ
petition.
2.Heard Mr.Bharatha Chakravarthy, learned counsel
for the petitioner and Mr.Kalyanaraman, learned counsel
for the respondents.
3.Admittedly, a notice under section 13[2] was
issued on 21.10.2002 and a possession notice was also
issued under section 13[4] on 01.07.2004. As against the
said possession notice, the petitioner has already
approached the Debts Recovery Tribunal by way of an
appeal under section 17 of the SARFAESI Act. A
conditional order of stay is stated to have been passed
in the said appeal and the petitioner claims to have
complied with the conditional order. The appeal is
pending consideration still before the Debts Recovery
Tribunal.
4.At this stage, the first respondent has issued a
second notice under section 13[2]. Therefore, the
petitioner has come up with the present writ petition
challenging the notice under section 13[2] on the short
ground that the first respondent is not entitled to keep
on issuing notices under section 13[2] repeatedly,
especially when the previous notice under section 13[2]
and the possession notice under section 13[4] are under
challenge in a regularly filed appeal before the Debts
Recovery Tribunal.
5.I have carefully considered the submissions of the
learned counsel 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 8 items of immovable
properties and Schedule-2 containing the list of
hypothecated movable properties. When possession notice
under section 13[4] was issued on 01.07.2004, the said
possession notice contained only the description of four
immovable properties leaving out the remaining four out
the total of 8 items of immovable properties covered by
the notice under section 13[2]. As against possession
notice dated 01.07.2004, covering only four properties,
the petitioner has already gone before the Debts Recovery
Tribunal and obtained a conditional order not to proceed
with the auction sale of those properties, in
S.A.No.20/2004 dated 13.12.2004 [later re-numbered as
S.A.No.15/2007 on the file of the Debts Recovery Tribunal-
III, Chennai].
7.When the appeal is still pending consideration
before the Debts Recovery Tribunal, the first respondent
has issued the notice impugned in the writ petition under
section 13[2], dated 16.12.2006 in respect of the
remaining four properties which were left out under the
possession notice dated 01.07.2004.
8.Mr.D.Bharatha Chakravarthy, learned counsel for
the petitioner contended that section 13[2] of the
SARFAESI Act speaks only about ‘notice’ and not about
‘notices’ and that therefore, it is not open to the first
respondent to keep on issuing notices under section 13[2]
in a piecemeal manner. Section 13[2] reads as follows:
“13[2]:Where any borrower, who is under a
liability to a secured creditor under a
security agreement, makes any default in
repayment of secured debt or any
instalment thereof, and his account in
respect of such debt is classified by the
secured creditor as non-performing asset,
then, the secured creditor may require
the borrower by notice in writing to
discharge in full his liabilities to the
secured creditor within sixty days from
the date of notice failing which the
secured creditor shall be entitled to
exercise all or any of the rights under
sub-section [4].”
9.According to the learned counsel for the
petitioner, when the plain 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 the learned counsel for the petitioner for
the simple reason that under section 13[2] of the General
Clauses Act, 1897, the words in the Singular would
include the plural and vice-cersa in all Central Acts and
Regulations. Section 13 of the General Clauses Act reads
as follows:-
“13.GENDER AND NUMBER:-In all [Central
Acts] and Regulations, unless there is
anything repugnant in the subject or
context,-
[1]words importing the masculine
gender shall be taken to include females;
and[2]words in the singular shall
include the plural and vice versa.”
11.Therefore, unless there is anything repugnant in
the subject or context, words in singular would always
include plural. I do not find anything repugnant either
in section 13 or in any other section of SARFAESI Act to
exclude the plural, when section 13[2] refers to
“notice”. Therefore, there is no embargo for the first
respondent to issue 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 of the Hon’ble Apex Court in NEWSPAPERS
LIMITED V. STATE INDUSTRIAL TRIBUNAL reported in AIR 1957
SC 532, for the preposition that the provisions of the
General Clauses Act, cannot always be imported into
provisions of all the Acts. But, the said decision is of
no assistance to the petitioner for the simple reason
that, that decision arose out of the U.P.Industrial
Disputes Act,1947. Under the said Act, unless a group of
workmen joined together and raised a dispute, it would
not come within the definition of the term “industrial
dispute”. At the time when the aforesaid decision was
rendered, the U.P.Industrial Disputes Act had no
provision to enable individual workman to raise an
industrial dispute. Hence, the word “workmen”,
indicating the plural, was held not to include the
singular, since such an interpretation on the basis of
section 13[2] of the General Clauses Act was beyond the
object and scope of U.P.I.D. Act, 1947 at that point of
time. In other words there was something repugnant to
the context in the U.P. Industrial Disputes Act, 1947,
for invoking the provisions of section 13[2] of the
General Clauses Act.
13.But, insofar as the SARFAESI Act is concerned,
the scope of the Act, does not prohibit the issue of any
number of notices under section 13[2]. Therefore, the
application of the provisions of section 13[2] of the
General Clauses Act to the word “notice” found in section
13[2] of the SARFAESI Act, is justified.
14.Moreover, the original notice issued under
section 13[2] dated 21.10.2002, covered eight items of
immovable properties. The possession notice issued under
section 13[4] on 01.07.2004 covered only four out of
eight items of properties. There is no embargo under any
of the sub-sections of section 13 of the SARFAESI Act for
the first respondent even now to merely issue a
possession notice under section 13[4], in respect of the
four items of properties not covered by the earlier
notice under section 13[4] dated 01.07.2004. If there
can be no embargo for the issue of a fresh possession
notice, under section 13[4] in respect of the left out
properties, there cannot be any embargo for the issue of
a fresh notice under section 13[2]. Therefore, even on
this ground the contention of the learned counsel for the
petitioner cannot be accepted.
15.In any event, a writ petition as against a notice
under section 13[2] is not maintainable. It is always
open to the petitioner to give a reply and it is only
when the first respondent issues a possession notice
under section 13[4] that the petitioner is entitled to
approach the Debts Recovery Tribunal under section 17.
In this case, the petitioner has already filed an appeal
in S.A.No.15 of 2007 on the file of the Debts Recovery
Tribunal-III, Chennai. Therefore, if and when a
possession notice is issued under section 13[4], in
pursuance of the notice impugned in ths writ petition, it
is always open to the petitioner either to seek relief in
the appeal already pending before the Debts Recovery
Tribunal or to file a separate appeal as against the said
order. In other words, the remedies, open to the
petitioner under the provisions of the SARFAESI Act, are
not lost to him since that stage has not even come.
16.Therefore, leaving it open to the petitioner to
challenge any possession notice, as and when issued by
the first respondent under section 13[4] in pursuance of
the impugned notice, either in the same appeal pending on
the file of the Debts Recovery Tribunal or by way of a
separate appeal, this writ petition is dismissed. No
costs. Consequently, connected miscellaneous petition is
also dismissed,
ap
To
1. 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.