Ashok Bhushan, J.:- These three writ petitions have been filed by Shamken Group of Companies challenging the notices dated 26th May, 2006 issued under Section 13(2) of the Securitisation and Reconstruc­tion of Financial Assets and Enforcement of Security Interest Act, 2002 by respondent No.4, an Asset Reconstruction Company. 2. All these writ petitions, raising similar questions, have been heard together and are being finally decided by this common judg­ment. 3. We have heard Sri Naveen Sinha, Se­nior Advocate, assisted by Sri Anurag Khanna for the writ petitioner, Sushmita Banerji as­sisted by Sri Ashok Srivastava on behalf of respondent No.4 and learned Standing Coun­sel appearing for respondents Nos.l, 2 and 3. 4. It is sufficient to note the facts of Writ Petition No.56270 of 2009 in some detail for deciding the issues raised in all these writ pe­titions. Writ Petition No.56270 of 2009 has been filed by Shamken Spinners Limited, which is a registered company under the Companies Act, 1956. The petitioner Com­pany started commercial production with capital investment of about Rs.45 crores. The respondent No.4 is registered under the Securitisation and Reconstruction of Finan­cial Assets and Enforcement of Security In­terest Act, 2002 (hereinafter referred to as the SARFAESI Act, 2002) as a Securitisation and Construction Company. The petitioner availed term loan from ICICI Bank, Bank of India, IDBI - SASF, Bank of Baroda, China Trust Bank, DCB, IFCI, J & K Bank, SICOM, Syndicate Bank, UCO Bank, PICUP and ING Vysya. The petitioner also availed working capital facilities from ICICI Bank, Bank of India, China Trust Bank, Federal Bank, Indian Overseas Bank, Punjab & Sind Bank, SICON, Syndicate Bank, Axis Bank, PICUP and ING Vysya. The lenders of the term loan are hold­ing the first charge over the assets of the Com­pany whereas the working capital bankers/lenders are holding the second charge. After 30th September, 2003 the Company started incurring losses which eroded the net worth of the Company. The company filed a refer­ence under Section 15(1) of the Sick Indus­trial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the 1985 Act) on 6th April, 2004 being Case No.181 of 2004 before the Board for Industrial and Financial Reconstruction (hereinafter referred to as the BIFR). On 31st March, 2006 the ICICI Bank assigned its dues of Rs.85 crores to respon­dent No.4. On 31st March, 2006 the ICICI Bank assigned its dues of Rs.85 crores to respon­dent No.4. A notice under Section 13(2) of the SARFAESI Act, 2002 was issued by re­spondent No.4 to the petitioner on 26th May, 2006 demanding payment of a sum of Rs.85.08 crores. The petitioner submitted a reply to the notice, which was rejected by re­spondent No.4, communication regarding which was issued to the petitioner vide letter dated 31st July, 2006. On 4th September, 2006, the BIFR rejected the reference (first reference) of the petitioner on the ground that the Company did not approach to the BIFR with clean hand and failed to avail the oppor­tunity by the BIFR to present its case. The petitioner filed an appeal against the order of BIFR before the Appellate Authority for Indus­trial and Financial Reconstruction, New Delhi (hereinafter referred to AAIFR). The Bank of India, Indian Overseas Bank and Develop­ment Credit Bank also assigned its dues to respondent No.4. The petitioner Company filed a second reference before the BIFR which was registered as Case No. 114 of 2006. By an order dated 30th May, 2007 the BIFR rejected the second reference as not main­tainable in view of first proviso to Section 15 of the 1985 Act as part of assets stood assigned to respondent No. 4 prior to regis­tration of the second reference. An appeal against the order dated 30th May, 2007 was filed which was allowed by the AAIFR on 29th November, 2007 remanding the matter to the BIFR for reconsideration. According to the AAIFR the first proviso to Section 15 of the 1985 Act could not apply unless and until the percentage of debt assigned was 75% or the assignee represents 75% of the secured creditors. A writ petition being Writ Petition No.9557 of 2007 was filed by respondent No.4 before the Delhi High Court challeng­ing the order of the AAIFR disputing the in­terpretation put by AAIFR on second proviso to Section 15 of the 1985 Act. An interim or­der was passed in the writ petition by the Delhi High Court directing that till the next date the BIFR shall not pass any order. At the instance of the petitioner, the respondent No.4 and other secured creditors agreed for liqui­dating the debt through intervention of the Court and also by third party investor. An interim or­der was passed in the writ petition by the Delhi High Court directing that till the next date the BIFR shall not pass any order. At the instance of the petitioner, the respondent No.4 and other secured creditors agreed for liqui­dating the debt through intervention of the Court and also by third party investor. The petitioner filed an application before this Court under Sections 391-394 of the Com­panies Act for approving the scheme of com­promise. Under the orders of the Company Judge a meeting of secured creditors was con­vened to consider the scheme. An objection was raised by one of the secured creditors (ING Vysya) that this Court has no jurisdic­tion to consider any scheme, the matter be­ing pending with BIFR. By an order dated 18th January, 2010 the objections of the ING Vysya were rejected. After rejection of ob­jections, the scheme for confirmation was submitted before the Company Judge. Again objections were raised which was rejected by the learned Company Judge on 9th August, 2010. Special appeals under Chapter VIII, Rule 5 of the Rules of the Court being Spe­cial Appeal Nos.1395 of 2010 and 1397 of 2010 were filed by the ING Vysya challeng­ing the orders passed by the learned Com­pany Judge rejecting its objections. Both the special appeals have been allowed by the Division Bench of this Court on 8th Septem­ber, 2010 holding that Company Court has no jurisdiction to entertain the application which was filed under Sections 391-394 of the Companies Act, the matter being pend­ing before the BIFR. The writ petition filed by respondent No.4 before the Delhi High Court has been dismissed by judgment and order dated 22nd November, 2010 accepting the interpretation put by the AAIFR on sec­ond proviso to Section 15 of the 1995 Act. The writ petition filed by respondent No.4 before the Delhi High Court has been dismissed by judgment and order dated 22nd November, 2010 accepting the interpretation put by the AAIFR on sec­ond proviso to Section 15 of the 1995 Act. The writ petition by Shamken Spinners Lim­ited was filed in this Court on 24th October, 2009 praying for following reliefs :- "(a) to issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 26.05.2006 issued by the Re­spondent No.4 under Section 13(2) of the Securitisation and Reconstruction of Finan­cial Assets and Enforcement of Security In­terest Act (filed as Annexure-2 to this peti­tion); (b) to issue a writ order or direction in the nature of mandamus restraining the Respon­dents, its agents, representatives, employees or assignees from taking any of the measures under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and En­forcement of Security Interest Act on the ba­sis of the impugned notice dated 26.05.2006 issued under Section 13(2) of the Securitization Act; (c) to issue a writ, order or direction in the nature of mandamus directing the Respon­dents not to take any coercive action against the Petitioner in pursuance of the impugned notice;" 5. A Division Bench of this Court passed an interim order on 28th October, 2009 stay­ing the recovery proceedings against the pe­titioner under the SARFAESI Act, 2002. However, it was provided that stay order will continue only till the final decision of the Delhi High Court in the writ petition No.9557 of 2007. It was further ordered that if posses­sion has been taken by the respondent No.4, they are restrained from auctioning or sell­ing the property in dispute without the leave of the Court. 6. A counter affidavit has been filed by re­spondent No.4 in Writ Petition No.56270 of 2009 claiming that writ petition filed by the petitioner is misconceived. It is pleaded in the counter affidavit that remedy of the peti­tioner, if any, is to avail the statutory remedy under the SARFAESI Act, 2002. It is stated that although initially respondent No.4 has given its consent for the scheme of compro­mise filed by the petitioner before this Court, however, since results were not declared on account of application filed by ING Vysya, an affidavit was filed by respondent No.4 withdrawing the consent to the scheme. It is stated that although initially respondent No.4 has given its consent for the scheme of compro­mise filed by the petitioner before this Court, however, since results were not declared on account of application filed by ING Vysya, an affidavit was filed by respondent No.4 withdrawing the consent to the scheme. It is claimed in the counter affidavit that respon­dent No.4 has consent of three-fourth secured creditors in value of the principal amount. 7. Writ Petition No.56251 of 2009 (Shamken Multifabs Limited v. State of U.P. and others) challenges the notice dated 26th May, 2006 issued by respondent No.4 under Section 13(2) of the SARFAESI Act, 2002 with further prayer of mandamus restraining the respondents from taking any of the mea­sures under Section 13(4) of the SARFAESI Act, 2002. The respondent No.4 was assigned debts from ICICI Bank, Bank of India,-Axis Bank, Indian Overseas Bank and Develop­ment Credit Bank as contemplated under Sec­tion 5(1)(b) of the SARFAESI Act, 2002. The petitioner Company also made first and sec­ond references, which were decided by the orders of BIFR and AAIFR as noted above. 8. Writ Petition No.56251 of 2009 (Shamken Cotsyn Limited v. State of U.P. and others) prays for quashing the notice dated 26th May, 2006 issued by respondent No.4 under Section 13(2) of the SARFAESI Act, 2002 and further for a mandamus restraining the respondents from taking any of the mea­sures under Section 13(4) of the SARFAESI Act, 2002. In the present case, the respon­dent No.4 was assigned dues of ICICI Bank and Bank of India. There are two additional facts in this writ petition, firstly the BIFR vide its order dated 16th June, 2010 has abated the reference since the respondent Company has taken possession of one Unit of the petitioner in exercise of power under Section 13(4) of the SARFAESI Act, 2002. An appeal was filed by the petitioner before the AAIFR which was rejected on 19th November, 2010. As noticed above, the first and second refer­ences to the BIFR were made in the same manner as was noted while noticing the facts of Writ Petition No. 56270 of 2009. 9. An appeal was filed by the petitioner before the AAIFR which was rejected on 19th November, 2010. As noticed above, the first and second refer­ences to the BIFR were made in the same manner as was noted while noticing the facts of Writ Petition No. 56270 of 2009. 9. Sri Naveen Sinha, Senior Advocate, ap­pearing for the petitioner has made follow­ing submissions:- (i) After issuing notice under Section 13(2) of the SARFAESI Act, 2002, the respondent No.4 abandoned its claim of taking any fur­ther action in continuation of the notice which is apparent from the conduct of respondent No.4 in entering in negotiation and agreeing for a scheme of settlement. On principle of waiver and abandonment of claim, the claim of the respondents is barred and they cannot take any further action in continuation of no­tice under Section 13(2) of the SARFAESI Act, 2002. (ii) The reference before the BIFR, inso­far as writ petitions of Shamken Spinners and Shamken Multifabs are concerned, being pending for consideration, no action can be taken under the SARFAESI Act, 2002. Fur­ther in application filed under Sections 391-394 of the Companies Act before this Court the stand having been taken by the secured creditors that the matter is pending in the BIFR (in the objection raised by ING Vysya) and the Division Bench of this Court while allowing the special appeal having taken the view that application under Sections 391-394 was not maintainable, it is not open for re­spondent No.4 to take the stand that refer­ence before the BIFR is not pending. (iii) The respondent No.4 has not acquired 75% debts of secured creditors, hence the ref­erence pending before the BIFR cannot abate and during pendency of reference before the BIFR power under Section 13(4) of the SARFAESI Act, 2002 cannot be invoked.The Division Bench of Delhi High Court while deciding Writ Petition No.9557 of 2007 has upheld the interpretation that in second pro­viso to Section 15 of the 1985 Act there has to be assignment of 75% to the value of the amount outstanding against financial assis­tance disbursed to the borrowers. (iv) Section 22 of the 1985 Act bars notice under Section 13(2) of the SARFAESI Act, 2002. Due to bar of Section 22 of the 1985 Act, no recovery proceeding could have been initiated against the Company, hence the no­tice under Section 13(2) of the SARFAESI Act, 2002 is without jurisdiction. (iv) Section 22 of the 1985 Act bars notice under Section 13(2) of the SARFAESI Act, 2002. Due to bar of Section 22 of the 1985 Act, no recovery proceeding could have been initiated against the Company, hence the no­tice under Section 13(2) of the SARFAESI Act, 2002 is without jurisdiction. The notice under Section 13(2) of the SARFAESI Act, 2002 being without jurisdiction, the bar of alternate remedy shall also not be applicable. (v)The question as to whether secured creditors represent not less than three-fourth value of the amount outstanding against the financial assistance disbursed to the borrow­ers as provided under Section 13(9) of the SARFAESI Act, 2002,, is a question which has to be determined by the BIFR where the reference is pending and unless there is such adjudication reference cannot be treated to be abated nor it is open to take any action under Section 13(4) of the SARFAESI Act, 2002 by the secured creditors before such deter­mination. 10. Reliance has been placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd. and others reported in (1993)2 SCC 144 : (1993 AIR SCW 991). 11. Sushmita Banerji appearing for respon­dent No.4, refuting the submissions of learned counsel for the petitioner, contends that writ petition challenging the notice under Section 13(2) of the SARFAESI Act, 2002 cannot be entertained due to availability of statutory remedy under Section 17 of the SARFAESI Act, 2002. It is submitted that insofar as first two writ petitions are concerned, i.e. writ petition of Shamken Spinners Limited and Shamken Multifabs Limited, no measures under Section 13(4) of the Shamken Multifabs Limited having yet been taken, the writ petitions cannot be entertained and in any view of the matter as and when any such steps are taken, the remedy of the petitioner is to avail the forum as provided under Section 17 of the SARFAESI Act, 2002. Reliance has been placed by learned counsel appearing for respondent No.4 on the judgment of the Apex Court in the case of United Bank of India v. Satyawati Tandon reported in 2010(8) SCC 110 : ( AIR 2010 SC 3413 ). Reliance has been placed by learned counsel appearing for respondent No.4 on the judgment of the Apex Court in the case of United Bank of India v. Satyawati Tandon reported in 2010(8) SCC 110 : ( AIR 2010 SC 3413 ). Replying the sub­mission of learned counsel for the petitioner on merits, it is contended by learned counsel for respondent No.4 that respondent No.4 has written consent from more than 75% of value of outstanding dues, hence it is fully entitled to take all measures as contemplated under Section 13(4) of the SARFAESI Act, 2002. Referring to Section 13(9) of the SARFAESI Act, 2002, it is contended that the secured creditors representing three-fourth of the value of the outstanding amount having authorised respondent No.4, it has every right to proceed under the SARFAESI Act, 2002 and take all action as provided under Section 13(4) of the SARFAESI Act, 2002. It is contended that the SARFAESI Act, 2002 being a later enactment, it shall prevail over the 1985 Act. The non-obstanti clause contained in the SARFAESI Act, 2002 has precedent over the non-obstanti clause contained in the 1985 Act. Reliance has been placed by learned counsel for respon­dent No.4 on the judgment of the Apex Court in Maharashtra Tubes Ltd. case (1993 AIR SCW 991) (supra). It is contended that there is no requirement of any adjudication by BIFR as to whether three-fourth assets of secured creditors have been purchased by the asset reconstruction company or not. It is submit­ted that under the second proviso to Section 15 of the 1985 Act, there is no requirement of three-fourth of secured assets by an asset re­construction company. It is, however, sub­mitted that since in the present case the re­spondent No.4 has written consent of more than three-fourth of dues of secured credi­tors, under third proviso to Section 15 of the 1985 Act it is fully competent to take all re­course measures under Section 13(4) of the SARFAESI Act, 2002. Learned counsel for the respondent No.4 has also placed reliance on various judgments of the High Courts as well as the Apex Court which shall be considered while considering the submissions in detail. 12. We have considered the respective sub­missions of learned counsel for the parties and perused the record. 13. Learned counsel for the respondent No.4 has also placed reliance on various judgments of the High Courts as well as the Apex Court which shall be considered while considering the submissions in detail. 12. We have considered the respective sub­missions of learned counsel for the parties and perused the record. 13. From the facts, as noticed above, it is clear that the submissions raised by learned counsel for the petitioner in first two writ pe­titions are common whereas in third writ peti­tion, i.e. writ petition of Shamken Cotsyn Lim­ited the reference before the BIFR having ulti­mately been rejected and no reference having been pending, the bar of Section 22 of the 1985 Act is not pressed in service. In the third writ petition the measures under Section 13(4) having already been taken, the third writ peti­tion which challenges the notice under Section 13(2) of the SARFAESI Act, 2002 with a further prayer of mandamus restraining the respondents from taking measures under Sec­tion 13(4) need not detain us. The bar under Section 22 of the 1985 Act is not even appli­cable, the reference before the BIFR having been rejected and appeal having also been dis­missed by the AAIFR vide its order dated 19th November, 2010. The third writ petition being Writ Petition No.56051 of 2009 deserves to be dismissed. 14. The principal submission in first two writ petitions of Sri Naveen Sinha, Senior Ad­vocate, appearing for the petitioner is on the basis of Section 22 of the 1985 Act. Elabo­rating his submissions, Sri Sinha has con­tended that respondent No.4 even does not allege that it has acquired three-fourth assets of secured creditors, hence even according to Section 15 of the 1985 Act it cannot take any action under Section 13(4) of the SARFAESI Act, 2002 and the BIFR is fully competent to proceed for framing the scheme for rehabilitation of the company. It is sub­mitted by Sri Sinha that the question as to whether the respondent No.4 has acquired three-fourth value of the amount outstanding against the financial assistance disbursed to the borrowers is to be decided by the BIFR, which is the appropriate forum to decide the same, hence the petitioner is fully entitled in these two writ petitions for the relief claim for. He contends that the Apex Court even in the case of United Bank of India v. Satyawati Tandon : ( AIR 2010 SC 3413 ) (supra) has laid down that High Court in exercise of writ ju­risdiction under Article 226 of the Constitu­tion of India, in appropriate case, can exercise its discretionary jurisdiction despite availabil­ity of statutory remedy. It is submitted that the Apex Court itself has noticed the excep­tions to the general rule of not entertaining the writ petition on availability of statutory rem­edy. Sri Sinha has placed reliance on paragraphs 44, 45 and 46 of the said judgment, which are extracted below:- "44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Gov­ernment, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignor­ing the fact that the petitioner can avail effec­tive alternative remedy by filing application, appeal, revision, etc. and the particular legis­lation contains a detailed mechanism for redressal of his grievance. 46. It must be remembered that stay of an action initiated by the State and/or its agen­cies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, fi­nancial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove det­rimental to the economy of the nation. In cases relating to recovery of the dues of banks, fi­nancial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove det­rimental to the economy of the nation. There­fore, the High Court should be extremely care­ful and circumspect in exercising its discre­tion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556 , Whirl­pool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 : ( AIR 1999 SC 22 ) and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 : ( AIR 2003 SC 2120 ) and some other judgments, then the High Court may, after con­sidering all the relevant parameters and public interest, pass appropriate interim order." 15. Learned counsel for both the parties, apart from addressing their submissions re­garding non entertainability of the writ peti­tion under Article 226 of the Constitution of India due to availability of statutory remedy under the SARFAESI Act, 2002, have also addressed on merits, i.e., bar of Section 22 of the 1985 Act, hence apart from considering their respective submissions on preliminary point, we proceed to decide the case on mer­its also. 16. The 1985 Act was enacted as a special provision with a view to securing the timely detection of sick and potentially sick compa­nies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and others measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or inci­dental thereto. 17. Section 15 of the 1985 Act provides for reference to the Board. Section 22 of the 1985 Act provides for suspension of legal pro­ceedings, contracts etc. Section 15 (un-amended) and Section 22 of the 1985 Act are quoted below:- "15. 17. Section 15 of the 1985 Act provides for reference to the Board. Section 22 of the 1985 Act provides for suspension of legal pro­ceedings, contracts etc. Section 15 (un-amended) and Section 22 of the 1985 Act are quoted below:- "15. Reference to Board.- (1) Where an industrial company has become a sick indus­trial company, the Board of Directors of the company, shall, within sixty days from the date of finalisation of the duly audited ac­counts of the company for the financial year as at the end of which the company has be­come a sick industrial company, make a ref­erence to the Board for determination of the measures which shall be adopted with respect to the company: Provided that if the Board of Directors had sufficient reasons even before such finalisation to form the opinion that the com­pany had become a sick industrial company, the Board of Directors shall, within sixty days after it has formed such opinion, make a ref­erence to the Board for the determination of the measures which shall be adopted with re­spect to the company. (2) Without prejudice to the provisions of sub-section (1), the Central Government or the Reserve Bank or a State Government or a public financial institution or a State level in­stitution or a scheduled bank may, if it has sufficient reasons to believe that any indus­trial company has become, for the purposes of this Act, a sick industrial company, make a reference in respect of such company to the Board for determination of the measures which may be adopted with respect to such company: Provided that a reference shall not be made under this sub-section in respect of any in­dustrial company by - (a) the Government of any State unless all or any of the industrial undertakings belong­ing to such company are situated in such State; (b) a public financial institution or a State level institution or a scheduled bank unless it has, by reason of any financial assistance or obligation rendered by it, or undertaken by it, with respect to, such company, an interest in such company. 22. 22. Suspension of legal proceedings, con­tracts, etc.- (1) Where in respect of an in­dustrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consider­ation or a sanctioned scheme is under imple­mentation or where an appeal under section 25 relating to an industrial company is pend­ing, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and ar­ticles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof 3fand no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guar­antee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority. (2) Where the management of the sick in­dustrial company is taken over or changed, 3[in pursuance of any scheme sanctioned un­der section 18], notwithstanding anything con­tained in the Companies Act, 1956 (1 of 1956) or any other law or in the memorandum and articles of association of such company or any instrument having effect under the said Act or other law- (a) it shall not be lawful for the shareholders of such company or any other person to nominate or appoint any person to be a director of the company; (b) no resolu­tion passed at any meeting of the shareholders of such company shall be given effect to un­less approved by the Board. (3) [Where an inquiry under section 16 is pending or any scheme referred to in section 17 is under preparation or during the period] of consideration of any scheme under section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company con­cerned that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such sick in­dustrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities ac­cruing or arising there under before the said date, shall remain suspended or shall be en­forceable with such adaptations and in such manner as may be specified by the Board: Pro­vided that such declaration shall not be made for a period exceeding two years which may be extended by one year at a time so, how­ever, that the total period shall not exceed seven years in the aggregate. (4) Any declaration made under sub-sec­tion (3) with respect to a sick industrial com­pany shall have effect notwithstanding any­thing contained in the Companies Act, 1956 (1 of 1956) or any other law, the memoran­dum and articles of association of the com­pany or any instrument having effect under the said Act or other law or any agreement or any decree or order of a court, tribunal, of­ficer or other authority or of any submission, settlement or standing order and accordingly,- (a) any remedy for the enforcement of any right, privilege, obligation and liability sus­pended or modified by such declaration, and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and (b) on the declaration ceasing to have effect- (i) any right, privi­lege, obligation or liability so remaining sus­pended or modified, shall become revived and enforceable as if the declaration had never been made; and (ii) any proceeding so remaining stayed shall be proceeded with, subject to the provisions of any law which may then be in force, from the stage which had been reached when the proceedings became stayed. (5) In computing the period of limitation for the enforcement of any right, privilege, obligation or liability, the period during which it or the remedy for the enforcement thereof remains suspended under this section shall be excluded." 18. The SARFAESI Act, 2002 was enacted to regulate securitisation and reconstruction of financial assets and enforcement of secu­rity interest and for matters connected there­with or incidental thereto. Section 3 of the SARFAESI Act, 2002 provides for registra­tion of securitisation companies or recon­struction companies. Section 5 of the SARFAESI Act, 2002 provides for acquisi­tion of rights or interest in financial assets. The respondent No.4 has been assigned by various assignment deed the debts of ICICI Bank and other Banks and has stepped into the shoes of the secured creditors. Section 13 of the SARFAESI Act, 2002 provides for en­forcement of security interest. Sections 13(2), 13(4) and 13(9), which are relevant for the purpose, are quoted below:- "13. Enforcement of security interest (1)......... (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). (3) ........... (3) ........... (4) In case the borrower fails to discharge his liability in full within the period speci­fied in sub-section (2), the secured creditor may take recourse to one or more of the fol­lowing measures to recover his secured debt, namely:- (a) take possession of the secured assets of the borrower including the right to trans­fer by way of lease, assignment or sale for realising the secured asset; (b) take over the management of the busi­ness of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset: PROVIDED that the right to transfer by way of lease, assignment or sale shall be ex­ercised only where the substantial part of the business of the borrower is held as security for the debt: PROVIDED FURTHER that where the management of whole of the business or part of the business is severable, the secured credi­tor shall take over the management of such business of the borrower which is relatable to the security for the debt. (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; (d) require at any time by notice in writ­ing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. (5) to (8)........... (5) to (8)........... (9) In the case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to sub-section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than three-fourth in value of the amount out­standing as on a record date and such action shall be binding on all the secured creditors: PROVIDED that in the case of a company in liquidation, the amount realised from the sale of secured assets shall be distributed in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956): PROVIDED FURTHER that in the case of a company being wound up on or after the commencement of this Act, the secured credi­tor of such company, who opts to realise his security instead of relinquishing his security and proving his debt under proviso to sub­section (1) of section 529 of the Companies Act, 1956 (1 of 1956), may retain the sale proceeds of his secured assets after deposit­ing the workmen's dues with the liquidator in accordance with the provisions of section 529AofthatAct: PROVIDED ALSO that the liquidator re­ferred to in the second proviso shall intimate the secured creditors the workmen's dues in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956) and in case such workmen's dues cannot be ascertained, the liquidator shall intimate the estimated amount of workmen's dues under that section to the secured creditor and in such case the secured creditor may retain the sale proceeds of the secured assets after deposit­ing the amount of such estimated dues with the liquidator: PROVIDED ALSO that in case the secured creditor deposits the estimated amount of workmen's dues, such creditor shall be liable to pay the balance of the workmen's dues or entitled to receive the excess amount, if any, deposited by the secured creditor with the liq­uidator: PROVIDED ALSO that the secured credi­tor shall furnish an undertaking to the liqui­dator to pay the balance of the workmen's dues, if any. Explanation : For the purposes of this sub-section,- (a) "record date" means the date agreed upon by the secured creditors representing not less than three fourth in value of the amount outstanding on such date; (b) "amount outstanding" shall include principal, interest and any other dues payable by the borrower to the secured creditor in re­spect of secured asset as per the books of ac­count of the secured creditor." 19. Section 35 of the SARFAESI Act, 2002 gives overriding effect to the provisions of the said Act. Section 35 of the SARFAESI Act, 2002 is quoted below:- "35. The provisions of this Act to override other laws.- The provisions of this Act shall have effect, notwithstanding anything incon­sistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." 20. Section 41 of the SARFAESI Act, 2002 provides for amendment in certain enact­ments as specified in the schedule. Section 41 read with schedule inserts two proviso (second and third provisos) in Section 15 of the 1985 Act. Relevant part of the schedule is as follows:- THE SCHEDULE (See Section 41) Year Act No. Short title Amendment 1986 1 The Sick Industrial Companies (Special Provisions) Act 1985. In section 15 in sub-section (1) after the proviso insert the following: - "PROVIDED FURTHER that no reference shall be made to the Board for Industrial and Fi- nancial Reconstruction after the commencement of the Securitisation and Reconstruc- tion of Financial Assets and En- forcement of Security Interest Act 2002 where financial as- sets have been acquired by any securitisation company •or reconstruction company under sub-section (I) of sec- tion 5 of that Act: PROVIDED ALSO that on or after the commencement of the Securitisation and Reconstruc- tion of Financial Assets and Year Act No. Short title Amendment Enforcement of Security Inter- est Act 2002 where a reference is pending before the Board for Industrial and Financial Recon- struction such reference shall abate if the secured creditors representing not less than three- fourth in value of the amount outstanding against financial as- sistance disbursed to the bor- rower of such secured creditors have taken any measures to recover their secured debt un- der sub-section (4) of section 13 of that Act." 21. The second proviso to Section 15 pro­vides that no reference shall be made to the BIFR after the commencement of SARFAESI Act, 2002, where financial assets have been acquired by any securitisation company or re­construction company under sub-section (1) of Section 5 of the SARFAESI Act, 2002. Thus where financial assets have been ac­quired by any securitisation company, no ref­erence shall be made to the BIFR. The sec­ond proviso to Section 15 of the 1985 Act having been inserted by the SARFAESI Act, 2002, the legislative intend is clear. The third proviso as inserted by the SARFAESI Act, 2002 contemplates that on or after enforce­ment of the SARFAESI Act, 2002, where a reference is pending before the BIFR, such reference shall abate if the secured creditors, representing not less than three-fourth in value of the amount outstanding against fi­nancial assistance disbursed to the borrower of such secured creditors, have taken any measures to recover their secured debt under sub-section (4) of Section 13 of the SARFAESI Act, 2002. Thus if secured credi­tors representing three-fourth of the value decides to take any measure to recover its debt, the reference shall abate. For abatement in consequence to the measures taken in the aforesaid manner, neither any formal order is contemplated nor any adjudication is con­templated by third proviso. A Division Bench of the Bombay High Court in Writ Petition No.358 of 2009 ( Rama Shree Conductors Limited v. The Appellate Authority for Indus­trial and Financial Reconstruction and others) decided on 12th September, 2009 has taken the view which supports the interpreta­tion put by us. Following was laid down in paragraph 5 of the said judgment:- "5. Perusal of the above quoted provisions shows that if there is a valid action taken un­der Section 13(4), then one of the conse­quence is that any reference pending in rela­tion to that company before BIFR automati­cally abates. In our opinion, provisions of Section 15 do not contemplate any order be­ing passed by the Board for Industrial and Financial Reconstruction in relation to the abatement. The abatement of the reference is a consequence, which occurs automatically on a valid action being taken under Section 13(4). In our opinion, provisions of Section 15 do not contemplate any order be­ing passed by the Board for Industrial and Financial Reconstruction in relation to the abatement. The abatement of the reference is a consequence, which occurs automatically on a valid action being taken under Section 13(4). In our opinion, therefore, the AAIFR was perfectly justified in taking the view that if it is the case of the Petitioner that the ac­tion taken by Respondent No.3 under Sec­tion 13(4) is invalid for any reason, the ap­propriate remedy for the Petitioner was to approach the D.R.T., which is the Forum pro­vided by the Securitisation Act for deciding such questions. If the finding is recorded by that Forum that the action taken under Sec­tion 13(4) is invalid as it lacks consent of three-fourth secured creditors, then the Ref­erence of the Petitioner-company pending in the BIFR will automatically stand revived and no order will be necessary to be passed by any authority under the Sick Industrial Com­panies Act for that purpose." 22. With regard to interpretation of second proviso to Section 15 of the 1985 Act, there has been divergent stand taken by the peti­tioner as well as respondent No.4. Against the judgment of the BIFR appeal was filed be­fore the AAIFR and the AAIFR interpreted the second proviso to the effect that in sec­ond proviso 75% of the financial assets have to be read into. The respondent No.4 had filed the writ petition before the Delhi High Court challenging the appellate order, which has been decided on 22nd November, 2010. The Delhi High Court interpreted the second pro­viso holding that pressing in service second proviso securitisation company must pur­chase 75% or more of the secured assets. Fol­lowing was laid down by the Delhi High Court in paragraph 12 of the said judgment:- "12. The Delhi High Court interpreted the second pro­viso holding that pressing in service second proviso securitisation company must pur­chase 75% or more of the secured assets. Fol­lowing was laid down by the Delhi High Court in paragraph 12 of the said judgment:- "12. In view of the above, our conclusion therefore is that undoubtedly, a literal inter­pretation of the 2nd proviso to Section 15(1) of the SICA does not require any minimum percentage of the secured assets to be pur­chased by an asset reconstruction company or a securitization company acting under the SARFAESI Act, however, the literal interpre­tation results in an absurdity and a stalemate which can and should be avoided by requir­ing in the 2nd proviso to Section 15(1) that the asset reconstruction company or the securitisation company must purchase at least 75% or more of the secured assets of a Sick Industrial Company before it can claim to bring into effect the second proviso to Sec­tion 15(1)." 23. Learned counsel for respondent No.4 has submitted that even if it is assumed that second proviso to Section 15 of the 1985 Act is not to be pressed into service in the present case, the respondent No.4 has every right to take recourse of measures under Section 13(4) of the SARFAESI Act, 2002 by virtue of third proviso to Section 15 of the 1985 Act. In the counter affidavit filed by respondent No.4, it has been specifically pleaded in paragraph 14 that respondent No.4 has consent of three-fourth secured creditors in the value of the principal amount outstanding. The consent letters have been filed as Annexure CA-4 to the writ petition. Paragraph 14 of the counter " affidavit is quoted below:- "14. With reference to paras 29 & 30 of the writ petition, the contentions are denied as being false and misleading. This Respon­dent is having consent of three-fourth secured creditors in the value of the principal amount outstanding. The copies of the said consent letters from the other secured creditors are annexed hereto and marked as Annexure CA-4 (colly)." 24. In paragraph 41 of the rejoinder affi­davit, the specific pleading in paragraph 14 of the counter affidavit is not even denied. This Respon­dent is having consent of three-fourth secured creditors in the value of the principal amount outstanding. The copies of the said consent letters from the other secured creditors are annexed hereto and marked as Annexure CA-4 (colly)." 24. In paragraph 41 of the rejoinder affi­davit, the specific pleading in paragraph 14 of the counter affidavit is not even denied. It is true that respondent No.4 has not acquired financial assets of three-fourth in value or more of the secured creditors but it is entitled to represent secured creditors of not less than three fourth in value of the amount outstand­ing and by virtue of Section 13(9) it is entitled to take measures under Section 13(4) of the SARFAESI Act, 2002. On measures being taken by a reconstruction company represent­ing three-fourth of the value of the amount outstanding against the financial assistance of the secured creditors, the reference before the BIFR shall stand automatically abated. Thus there is no impediment in taking any action under Section 13(4) of the SARFAESI Act, 2002 by virtue of third proviso to Section 15 of the 1985 Act. The prayer of mandamus claimed in first two writ petitions for restrain­ing the respondents from taking any measure under Section 13(4) of the SARFAESI Act, 2002 in continuation to the notice under Sec­tion 13(2) of the SARFAESI Act, 2002, thus cannot be accepted. Section 22 of the 1985 Act does not bar taking of proceedings under Section 13(2) and 13(4) of the SARFAESI Act, 2002. The SARFAESI Act, 2002 being an spe­cial Act the non-obstanti clause contained in the 1985 Act cannot override the SARFAESI Act, 2002. The amendments made by the SARFAESI Act, 2002 by Section 41 read with schedule in Section 15 of the 1985 Act makes the legislative intend clear. No reference can be registered after the SARFAESI Act, 2002 in certain conditions and references pending on or after the SARFAESI Act, 2002 shall abate on taking measures by three-fourth secured creditors. In this context the judgment of the Apex Court in the case of Transcore v. Union of India and others reported in (2008)1 SCC 125 : ( AIR 2007 SC 712 ) is relevant where the Apex Court had occasion to consider the provisions of the SARFAESI Act, 2002 in con­text of Section 19 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993. In Section 19 of the 1993 Act a proviso was added by Act No.30 of 2004:- "Provided that the bank or financial insti­tution may, with the permission of the Debts Recovery Tribunal, on an application made by it, withdraw the application, whether made before or after the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004 for the purpose of taking action under the Securitisation and Re­construction of Financial Assets and Enforce­ment of Security Interest Act, 2002 (54 of 2002), if no such action had been taken ear­lier under that Act: Provided further that any application made under the first proviso for seeking permission from the Debts Recovery Tribunal to with­draw the application made under sub-section (1) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application: Provided also that in case the Debts Re­covery Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders af­ter recording the reasons there for." 25. The question came for consideration as to whether without withdrawing the appli­cation filed before the Debt Recovery Tribu­nal powers under Sections 13(2) and 13(4) of the SARFAESI Act, 2002 can be invoked by the secured creditors under the SARFAESI Act, 2002. The Apex Court had laid down that withdrawal of the application pending be­fore the Debt Recovery Tribunal is not a pre­condition for taking recourse under the NPA Act. In the said context, the Apex Court noted the object and purpose of the SARFAESI Act, 2002. It is relevant to quote paragraphs 61, 64 and 69 of the said judgment, which are as under:- 61. Keeping in mind the above circum­stances, the NPA Act is enacted for quick en­forcement of the security. The said Act deals with enforcement of the rights vested in the bank/FI. The NPA Act proceeds on the basis that security interest vests in the bank/FI. The NPA Act proceeds on the basis that security interest vests in the bank/FI. Sections 5 and 9 of NPA Act is also important for preserva­tion of the value of the assets of the banks/FIs. Quick recovery of debt is important. It is the object of DRT Act as well as NPA Act. The NPA Act proceeds on the basis that security interest vests in the bank/FI. Sections 5 and 9 of NPA Act is also important for preserva­tion of the value of the assets of the banks/FIs. Quick recovery of debt is important. It is the object of DRT Act as well as NPA Act. But under NPA Act, authority is given to the banks/FIs, which is not there in the DRT Act, to assign the secured interest to securitisation company/asset reconstruction company. In cases where the borrower has bought an as­set with the finance of the bank/FI, the latter is treated as a lender and on assignment the securitisation company/asset reconstruction company steps into the shoes of the lender bank/FI and it can recover the lent amounts from the borrower. 64. In the light of the above discussion, we now examine the doctrine of election. There are three elements of election, namely, exist­ence of two or more remedies; inconsisten­cies between such remedies and a choice of one of them. If any one of the three elements is not there, the doctrine will not apply. Ac­cording to American Jurisprudence, 2d, Vol. 25, page 652, if in truth there is only one rem­edy, then the doctrine of election does not ap­ply. In the present case, as stated above, the NPA Act is an additional remedy to the DRT Act. Together they constitute one remedy and, therefore, the doctrine of election does not apply. Even according to Snell's Equity (Thirty-first Edition, page 119), the doctrine of election of remedies is applicable only when there are two or more co-existent rem­edies available to the litigants at the time of election which are repugnant and inconsis­tent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no ap­plication. 69. For the above reasons, we hold that withdrawal of the O.A. pending before the DRT under the DRT Act is not a pre-condi­tion for taking recourse to NPA Act. It is for the bank/FI to exercise its discretion as to cases in which it may apply for leave and in cases where they may not apply for leave to withdraw. We do not wish to spell out those circumstances because the said first proviso to Section 19(1) is an enabling provision, which provision may deal with myriad cir­cumstances which we do not wish to spell out herein." 26. We do not wish to spell out those circumstances because the said first proviso to Section 19(1) is an enabling provision, which provision may deal with myriad cir­cumstances which we do not wish to spell out herein." 26. In view of the aforesaid, it is to be held that there is no illegality in the notice given under Section 13(2) of the SARFAESI Act, 2002 and the notice under Section 13(2) of the SARFAESI Act, 2002 cannot be held to be without jurisdiction. 27. Reliance has also been placed on the judgment of the Apex Court in the case of Maharashtra Tubes Ltd. (1993 AIR SCW 991) (supra) by counsel for the petitioner. The ques­tion which came up for consideration in the above case was as to whether the a financial corporation can take recourse to Sections 29 and 31 of the State Financial Corporation Act, 1951 notwithstanding the bar of Section 22 of the 1985 Act. The Apex Court considered the issue and held that both the Acts being special Acts and the 1985 Act being latter in point of time, the non-obstanti clause in the 1985 Act shall override the non-obstanti clause of the 1951 Act. Following was observed in paragraph 9 of the said judgment:- "19. Having reached the conclusion that both the 1951 Act and the 1985 Act are spe­cial statutes dealing with different situations the former providing for the grant of finan­cial assistance to industrial concerns with a view to boost up industrialization and the lat­ter providing for revival and rehabilitation of sick industrial undertakings, if necessary, by grant of financial assistance, we cannot up­hold the contention urged on behalf of the respondent that the 1985 Act is a general stat­ute covering a larger number of industrial concerns than the 1951 Act and, therefore, the latter would prevail over the former in the event of conflict. Both the statutes have competing non-obstante provisions. Section 46B of the 1951 Act provides that the provi­sion of that statute and of any rule or order made there under shall have effect notwith­standing anything inconsistent therewith con­tained in any other law for the time being in force whereas section 32(1) of the 1985 Act also provides that the provisions of the said Act and of any rules or schemes made there­ under shall have effect notwithstanding any­thing inconsistent therewith contained in any other law. Section 22(1) also carries a non-obstante clause and says that the said provi­sion shall apply notwithstanding anything contained in Companies Act, 1956 or any other law. The 1985 Act being a subsequent enactment, the non-obstante clause therein would ordinarily prevail over the non-obstante clause found in section 46B of the 1951 Act unless it is found that the 1985 Act is a gen­eral statute and the 1951 Act is a special one. In that event the maxim generalia specialibus non derogant would apply. But in the present case on a consideration the relevant provi­sions of the two statutes we have come to the conclusion that the 1951 Act deals with pre-sickness situation whereas the 1985 Act deals with the post-sickness situation. It is, there­fore, not possible to agree that the 1951 Act is a special statute vis-a-vis the 1985 Act which is at general statute. Both are special statutes dealing with different situations notwith­standing a slight overlap here and there, for example, both of them provide for grant of financial assistance though in different situa­tions. We must, therefore, hold that in cases of sick industrial undertakings the provisions contained in the 1985 Act would ordinarily prevail and govern." 28. The said judgment does not help the petitioner in the present case since here the Acts which are under consideration-are the 1985 Act and the SARFAESI Act, 2002. Both the Acts are special Acts containing non-obstanti clause and on the proposition as laid down in Maharashtra Tubes Ltd. case (1993 AIR SCW 991) (supra), the SARFAESI Act, 2002 has to be given overriding effect. 29. The learned counsel for the respondents is further right in her submission that in the event any measure is taken by respondent No.4 under Section 13(4) of the SARFAESI Act, 2002 and the petitioner has still griev­ance that the said action is not supported by the secured creditors representing three-fourth of the value of the principal amount due against the borrowers, the remedy of the pe­titioner is to proceed under the provisions as contemplated in the SARFAESI Act, 2002, i.e. by taking recourse to Section 17 of the SARFAESI Act, 2002. 30. 30. In United Bank of India v. Satyawati Tendon's case ( AIR 2010 SC 3413 ) (supra), the Apex Court was considering a case where action taken by the secured creditors under Section 13 of the SARFAESI Act, 2002 was challenged in a writ petition under Article 226 of the Constitution of India. The Apex Court held that if the respondent had any grievance under Section 13(4) of the SARFAESI Act, 2002 or action taken under Section 14, the remedy could be availed by filing an appli­cation under Section 17 of the SARFAESI Act, 2002. Following was laid down by the Apex Court in paragraphs 42, 43, 55 and 56 of the said judgment:- "42. There is another reason why the impugned order should be set aside. If respon­dent No. 1 had any tangible grievance against the notice issued under Section 13(4) or ac­tion taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any per­son' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribu­nal and the Appellate Tribunal are empow­ered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evi­dent that the remedies available to an ag­grieved person under the SARFAESI Act are both expeditious and effective. 43. Unfortunately, the High Court over­looked the settled law that the High Court will ordinarily not entertain a petition under Ar­ticle 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions in­volving challenge to the action taken for re­covery of the public dues, etc., the High Court must keep in mind that the legislations en­acted by Parliament and State Legislatures for recovery of such dues are code unto them­selves inasmuch as they not only contain com­prehensive procedure for recovery of the dues but also envisage constitution of quasi judi­cial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Con­stitution, a person must exhaust the remedies available under the relevant statute. 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the avail­ability of statutory remedies under the DRT Act and SARFAESI Act and exercise juris­diction under Article 226 for, passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater cau­tion, care and circumspection. 56. Insofar as this case is concerned, we are convinced that the High Court was not at all justified in injuncting the appellant from taking action in furtherance of notice issued under Section 13(4) of the Act. In the result, the appeal is allowed and the impugned or­der is set aside. Since the respondent has not appeared to contest the appeal, the costs are made easy." 31. Another submission, which has been pressed by the learned counsel for the peti­tioner, is that the claim which was made by respondent No.4 by giving notice under Sec­tion 13(2) of the SARFAESI Act, 2002, was waived and abandoned by respondent No.4 itself since it did not proceed to take action under Section 13(4) of the SARFAESI Act, 2002 and in view of giving its consent for scheme, which was, presented before the Company Judge of this Court by application under Sections 391-394 of the Companies Act, its claim has to be treated as abandoned. The respondent No.4 in its short counter affi­davit has specifically pleaded that it has never waived its right to proceed further under Sec­tion 13(4) of the SARFAESI Act, 2002 nor it abandoned its claim. After the notice under Section 13(2) of the SARFAESI Act, 2002 was given, a reply was submitted by the peti­tioner which was specifically rejected by re­spondent No.4 and a letter dated 31st July, 2006 was written communicating rejection of their objection. The fact that in an effort made by the petitioner by filing an application un­der Sections 391-394 of the Companies Act the respondent No.4 initially given its con­sent does not tantamount to accept that it has waived and abandoned its right. The fact that in an effort made by the petitioner by filing an application un­der Sections 391-394 of the Companies Act the respondent No.4 initially given its con­sent does not tantamount to accept that it has waived and abandoned its right. In an appli­cation which was brought by the petitioner itself, the respondent No.4 submitted its re­ply since the said scheme was being consid­ered by this Court. It has, however, specifi­cally pleaded in the counter affidavit that when delay was caused in finalisation of the scheme and an objection was raised by ING Vysya objecting the jurisdiction of this Court to consider the application, an affidavit was filed withdrawing the consent to the scheme. Following was stated in paragraph 4 of the counter affidavit:- "4...........However, in view of application filed by one of the secured creditors, ING Vysya Bank Ltd. (ING), the results were not declared and results of voting were kept in sealed covers. It is further submitted that in view of the delay in passing of order as also sanction of the Scheme, this respondent filed an affidavit before this Court, withdrawing consent to the Scheme." 32. It is relevant to note that in Special Ap­peal Nos.1395 of 2010 (The ING Vysya Bank Ltd. v. Shamken Spoinners Ltd. and others) and 1397 of 2010 (The ING Vysya Bank Ltd. v. Shamken Multifeb Ltd. and others), the Di­vision Bench ultimately laid down on 8th Sep­tember, 2010, (Reported in 2010 (6) ALJ 170) while allowing the appeal, that Company Court has no jurisdiction to entertain the ap­plication moved under Sections 391-394 of the Companies Act by the petitioner. The spe­cial appeals were filed challenging the orders passed by the Company Judge rejecting the objections of ING Vysya Bank Ltd. stating that the Company Judge has no jurisdiction since the matter is pending before the BIFR. Following was laid down in paragraphs 14 and 15 of the said judgment by the Division Bench:- "14. Thus, the position would be that the Company Court would have no jurisdiction to entertain the application, which was moved under Sections 391-394 of the Companies Act, which it entertained. Applying the law laid down earlier, the impugned order would be a 'judgment' within the meaning of Rule 5 Chapter VIII of the Allahabad High Court Rules. Thus, the position would be that the Company Court would have no jurisdiction to entertain the application, which was moved under Sections 391-394 of the Companies Act, which it entertained. Applying the law laid down earlier, the impugned order would be a 'judgment' within the meaning of Rule 5 Chapter VIII of the Allahabad High Court Rules. The order has been passed by a Court without jurisdiction and, considering the law declared by the Supreme Court in Midnapore People's Co-op. Bank Ltd. (supra), the spe­cial appeals, as filed, are maintainable. 15. Considering the aforesaid findings, the special appeals, as filed by the Bank, will have to be allowed. Accordingly, they are allowed. The impugned orders passed by the learned single Judge are set aside. The Company Ap­plications filed under Sections 391-394 of the Companies Act, are dismissed. 33. A waiver is an international relinquishment of a known right as was observed by the Apex Court while defining the word 'waiver' in the case of Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh reported in A.I.R. 1968 SC 933 (At P. 937). No material has been brought on the record by the petitioner to, in­dicate that there is any communication on be-half of the respondents that it did not intend to proceed under Section 13(4) of the SARFAESI Act, 2002 or notice under Section 13(2) of the SARFAESI Act, 2002 already given on 13th May, 2006 is waived, rather the respondent No.4 has been contesting the claim of the pe­titioners and throughout claiming that it is en­titled to recover its dues under the provisions of the SARFAESI Act, 2002. In this situation the claim of the petitioner that the respondent No.4 has waived its right cannot be accepted. 34. A Division Bench of the Bombay High Court in Writ Petition No.2842 of 2006 (As­set Reconstruction Company (India) Ltd. v. Appellate Authority for Industrial and Finan­cial Reconstruction and others) decided on 26th September, 2006 had also taken the view that in view of taking steps under Section 13(4) of the SARFAESI Act, 2002, the pro­ceedings before the BIFR stood abated. In the said case the BIFR took the view that pro­ceedings had abated since action was taken under Section 13(4) of the SARFAESI Act, 2002. The Company filed an appeal and the AAIFR remanded the matter to the BIFR, which was challenged. In the said case the BIFR took the view that pro­ceedings had abated since action was taken under Section 13(4) of the SARFAESI Act, 2002. The Company filed an appeal and the AAIFR remanded the matter to the BIFR, which was challenged. The Division Bench set aside the order of the AAIFR. Following was laid down by the Division Bench of Bombay High Court in paragraphs 4 and 5 of the said judgment:- "4........ICICI Bank was a secured credi­tor of respondent No.2. They had served a notice on respondent No.2 under Section 13(2) of the Securitisation and Reconstruc­tion of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, Securitisation Act) on 3.1.2003. ICICI Bank has assigned their rights in favour of the pe­titioner on 30.6.2004. The petitioner after taking consent of SICOM and Canara Bank proceeded to move under Section 13(4) of the Securitisation Act on 2.2.2005. Proceedings were also pending before BIFR. Con­sequent to action being taken under the pro­visions of the Securitisation Act, BIFR held that proceedings stood abated. The company aggrieved by that order preferred an appeal before AAIFR. The Appellate Authority ac­cepted the contention of the petitioners that the statutory requirement under the Securitisation Act had been met but proceeded on the footing that the company was not heard and as such remanded the matter back to BIFR by order dated 15.6.2006. It is this order which is the subject matter of the present petition. 5. After the Appellate Authority held that the petitioner had complied with the require­ments of the provisions of the Securitisation Act then operation of law the proceedings would abate, as held by BIFR. In these cir­cumstances, the impugned order is without jurisdiction and is liable to be set aside." 35. In view of the foregoing discussions, we are of the view that the petitioners in all the writ petitions are not entitled for relief as claimed in the writ petitions. All the writ pe­titions are dismissed. 36. Parties shall bear their own costs. Petitions dismissed.