JUDGMENT : M.R SHAH, J. As both these petitions can be said to be interconnected, both these petitions are heard, decided and disposed of together by this common judgment and order. 2. At the outset Special Civil Application No. 7030/2016 is to be treated as lead matter and therefore, facts of Special Civil Application No. 7030/2016 are narrated. 3. Special Civil Application No. 7030/2016 has been preferred by the original opponent-State Bank of India through its Authorized Officer challenging the impugned order dated 11.03.2016 passed by the learned Debts Recovery Tribunal-I, Ahmedabad (hereinafter referred to as “Tribunal”) in Securitization Application No. 46/2016 (Order on interim relief) by which the learned Tribunal has restrained the petitioner Bank and has directed the petitioner Bank not to conduct auction sale to the disputed bungalow in question scheduled to be conducted on 25.03.2016 4. Special Civil Application No. 17901/2015 has been preferred by the respective petitioners-owners and occupiers of residential bungalows situated at Shukan Palace-I, Science City, Ahmedabad for an appropriate writ, direction and order to quash and set aside the impugned order dated 31.08.2015 passed by the learned Tribunal below Exh.T/18 (Annexure-K) as well as the order dated 31.08.2015 passed by the learned Tribunal in Original Application No. 232/2014 (Annexure-L) by which the application submitted by the petitioners for joining them as party respondent in Original Application No. 232/2014 has been rejected. 5. Facts leading to the Special Civil Application No. 7030/2016 in nut-shell are as under: [3.1] That so far as Special Civil Application No. 7030/2016 is concerned, the dispute is with respect to Bungalow No. 15, Shukan Palace-I, Ghatlodiya, Ahmedabad (hereinafter referred to as “mortgaged property”) which was mortgaged by the original owners with the petitioner Bank while availing cash credit/loan/advance. It appears that while availing the cash credit/loan/advance of huge amount the original owners/builder-Shukan Palace Infrastructure, a partnership firm engaged in the business of construction also mortgaged the entire project known as “Shukan Palace-I” consisting of 24 bungalows situated at Survey No. 705/1, Khata No. 258, F.P No. 58, T.P No. 48, Moje Sola, Taluka Daskroi (which is not the subject matter of present petition i.e. Special Civil Application No. 7030/2016). That the petitioner Bank had taken the measures under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”) with respect to the mortgaged property and also took the possession of the mortgaged property after completing necessary formalities and procedure as required under the SARFAESI Act as well as by preparing the panchnama and even doing the videography. That the actual and physical possession of the mortgaged property was taken by the Bank on 12.06.2014 At no point of time the mortgagor raised any objection with respect to the action taken under the SARFAES I Act with respect to the mortgaged property in question. Even a notice under the SARFEASI Act was also published on 15.06.2014 That thereafter following the procedure under Section 14 of the SARFAESI Act the Bank took the physical possession on 13.02.2016 by drawing the panchnama and having videography. That after the possession of the mortgaged property was taken over by the Bank, e-auction was fixed on 25.03.2016 and for the purpose of the same date of inspection was kept on 10.03.2016 At that stage the respondent No. 1 herein claiming to be the purchaser of the mortgaged property, admittedly purchased after the proceedings under the SARFAESI Act was taken, filed the Securitization Application No. 46/2015 challenging the earlier action taken by the Bank under the SARFAESI Act more particularly the earlier notices under Section 13(2) of the SARFAESI Act and even taking over the possession pursuant to the order passed by the learned Tribunal, he has even preferred the interim application restraining the Bank to proceed further with e-auction of the mortgaged property. The said application was opposed by the Bank by submitting that the respondent No. 1 has no locus to file the said securitization application and challenge the securritization proceedings as he has purchased the mortgaged property in breach of the provisions of the SARFAESI Act and after the proceedings under the SARFAESI Act were initiated and therefore, the sale deed/transaction in favour of the respondent No. 1-original application is nullity. The application was also opposed on the ground that the original owners of mortgaged property with a view to dupe the dues of the Bank to the extent of Rs. 3,46,55,433 + further interest charges had executed the sale deed in favour of the respondent No. 1 herein-original applicant No. 1. The application was also opposed on the ground that the original owners of mortgaged property with a view to dupe the dues of the Bank to the extent of Rs. 3,46,55,433 + further interest charges had executed the sale deed in favour of the respondent No. 1 herein-original applicant No. 1. It was also submitted that earlier at no point of time the borrowers/mortgagor did not question/challenge the securitization proceedings till even the actual possession was taken over pursuant to the order passed by the learned Tribunal. Despite the above by impugned order the learned Tribunal has passed the impugned order and has granted the interim relief restraining the Bank from proceeding further with the auction with respect to the mortgaged property in question. [3.2] Feeling aggrieved and dissatisfied with the impugned order restraining the Bank from proceeding further with e-auction with respect to the mortgaged property in question, the Bank has preferred the present Special Civil Application under Article 226/227 of the Constitution of India. 6. Shri. Pranav G. Desai, learned advocate appearing on behalf of the petitioner has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has materially erred in entertaining the Securitization Application No. 46/2016 and in passing the impugned interim order dated 11.03.2016 restraining the Bank from proceeding further with e-auction with respect to the mortgaged property. It is vehemently submitted by Shri. Desai, learned advocate appearing on behalf of the petitioner that while passing the interim order the learned Tribunal has not properly appreciated the fact that as such the respondent No. 1-original applicant claims to have purchased the property in question on 25.04.2014 i.e. much after the proceedings under the SARFAESI Act were initiated. It is submitted that therefore the transaction, if any, in favour of the original applicant was nullity and in breach of the provisions of the SARFAESI Act more particularly Section 13 of the SARFAESI Act. 7. It is further submitted by Shri. Desai, learned advocate appearing on behalf of the petitioner that while passing the impugned order the learned Tribunal has not properly appreciated the fact that pursuant to the alleged registered sale deed dated 25.04.2014 the original applicant does not get any right, title or interest in the property as the said transaction is nullity and in breach of the provisos of the SARFAESI Act more particularly Section 13 of the SARFAESI Act. It is submitted that therefore the learned Tribunal ought to have appreciated that even the Securitization Application itself was not maintainable at the instance of the original applicant, more particularly when earlier at no point of time the mortgagor challenged the securitization proceedings and/or the notice under Section 13(2) of the SARFAESI Act, which are now sought to be challenged by the original applicant on the basis of the subsequent alleged sale deed dated 25.04.2014, which is a nullity. It is submitted by Shri. Desai, learned advocate appearing on behalf of the petitioner that the learned Tribunal ought to have appreciated that even subsequently when the possession was taken over pursuant to the order passed by the learned District Magistrate under Section 14 of the SARFAESI Act, the wife of the original borrower/mortgagor was in possession and in the month of February 2016 when the actual and physical possession was taken over by the Bank pursuant to the order passed by the learned District Magistrate under Section 14 of the SARFAESI Act, the original applicant though alleged to have purchased the mortgaged property on 25.04.2014 was not in possession. 8. It is submitted that the learned Tribunal has materially erred in not properly appreciating the fact that alleged transaction in favour of the original applicant was with the malafide intention to defeat the lawful right of the Bank of realization of the security of outstanding amount of Rs. 3,46,55,433 + interest charges etc. 9. It is further submitted by Shri. Desai, learned advocate appearing on behalf of the petitioner that even from considering the alleged registered sale deed 25.04.2014 in favour of the original applicant it cannot be said that at the time of execution of registered sale deed any consideration was paid. It is submitted that though in the sale deed dated 25.04.2014 executed in favour of the original applicant it is mentioned that the consideration has been paid by cheques and full consideration has been paid now. It is an admitted position that at the time when the sale deed was executed, no amount was paid and the same is alleged to have been paid now subsequently. It is submitted that deliberately and conveniently in the sale deed though cheques were mentioned but the date of cheques was not mentioned. It is an admitted position that at the time when the sale deed was executed, no amount was paid and the same is alleged to have been paid now subsequently. It is submitted that deliberately and conveniently in the sale deed though cheques were mentioned but the date of cheques was not mentioned. It is submitted that therefore the so called registered sale deed in favour of the applicant is nothing but a fraud with a view to dupe the Bank and with a malafide intention to defeat the lawful right of the Bank of realization of security for outstanding amount of Rs. 3,46,55,433 + further interest charges. 10. It is further submitted that even otherwise the transaction in favour of the respondent No. 1 herein-original applicant can be said to be nullity as the disputed property in question was admittedly mortgaged by the mortgagor at the time of taking the loan/credit and even the borrower/mortgagor deposited the title deed of the mortgaged property. It is submitted that therefore and in the facts and circumstances of the case the learned Tribunal has materially erred in not only entertaining the securitization application at the instance of respondent No. 1 herein-original applicant and passing the impugned order restraining the Bank from proceeding further with e-auction to sell the mortgaged property of which the possession was already taken over by the Bank after following due procedure under the provisions of the SARFAESI Act. 11. Making above submissions it is requested to allow the present Special Civil Application. 12. Present petition is vehemently opposed by Shri. Manav Mehta, learned advocate appearing on behalf of the respondent No. 1 herein-subsequent purchaser. 13. An affidavit in reply is filed on behalf of the respondent No. 1 opposing the present petition. Present petition is opposed on the ground that against the impugned order the petitioner Bank has statutory remedy available by way of preferring appeal before the learned Tribunal. It is submitted that therefore the present petition may not be entertained on the ground that the petitioner has statutory remedy of appeal available. Present petition is opposed on the ground that against the impugned order the petitioner Bank has statutory remedy available by way of preferring appeal before the learned Tribunal. It is submitted that therefore the present petition may not be entertained on the ground that the petitioner has statutory remedy of appeal available. He has also made submissions on merits also and number of submissions have been made with respect to the earlier order passed by the learned District Magistrate under Section 14 of the SARFAESI Act as well as the procedure of taking possession by the Bank Officer and also with respect to the earlier notice issued under Section 13(2) of the SARFAESI Act pursuant to which an application under Section 14 was made to the District Magistrate to secure the possession. 14. Shri. Mehta, learned advocate appearing on behalf of the respondent No. 1 has submitted that the petitioner is a bona-fide purchaser of the mortgaged property in question which he has purchased on payment of sale consideration. It is submitted that at the time when the alleged possession was taken by the Bank the original applicant was in possession and without issuing any notice to him the possession has been taken over which is absolutely illegal. 15. It is further submitted by Shri. Mehta, learned advocate appearing on behalf of the respondent No. 1 that even the order passed by the learned District Magistrate under Section 14 of the SARFAESI Act authorizing the petitioner Bank to take over the possession of the properly is absolutely illegal and against the decision of this Court. It is submitted that therefore the order dated 29.12.2015 passed by the District Magistrate authorizing the Bank to take the possession is a nullity and therefore, the alleged possession taken over by the Bank pursuant to the order passed by the learned District Magistrate is also illegal and nullity. It is submitted that considering the aforesaid facts and circumstances when the learned Tribunal has entertained the securitization application preferred by the original applicant and has passed an interim order restraining the Bank from proceeding further with the e-auction of the property in question of which now the original applicant is the owner, by further observing that there are arguable points, it is requested not to entertain the present petition and not to interfere with the impugned order passed by the learned Tribunal. 16. 16. Shri. Mehta, learned advocate appearing on behalf of the original applicant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Standard Chartered Bank v. V. Noble Kumar reported in (2013) 9 SCC 620 in support of his above submissions that the order passed by the learned District Magistrate authorizing the Bank to take the decision was illegal. 17. Shri. Mehta, learned advocate appearing on behalf of the respondent No. 1 has also relied upon the decision of the Hon'ble Supreme Court in the case of Tax Recovery Officer II, Sadar, Nagpur v. Gangadhar Vishwanath Ranade (Dead) Through Shobha Ravindra Nemiwant (Smt) reported in (1998) 6 SCC 658 in support of his submissions that the Bank had no jurisdiction to decide whether the transaction in favour of the original applicant is void under Section 13 of the SARFAESI Act or not. 18. Making above submissions and relying upon above decisions it is requested to dismiss the present petition. 19. In rejoinder Shri. Desai, learned advocate appearing on behalf of the petitioner has submitted that as at present the post of Member of the Debts Recovery Tribunal, Mumbai is vacant and the Bench is not available therefore, the plea of alternative remedy shall not be available to the original applicant. 20. It is submitted that even otherwise considering the fact that the order passed by the learned Tribunal is wholly without jurisdiction as the learned Tribunal has materially erred in not only entertaining the securitization application at the instance of the original applicant No. 1 whose transaction is a nullity and has anted the impugned order restraining the Bank from proceeding further with e-auction of the mortgaged property in question that too at the instance of the original applicant whose transaction is a nullity, it is requested to exercise the powers under Article 226 of the Constitution of India. 21. 21. Shri. Desai, learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Division Bench of Madras High Court in the case of Lakshmi Products v. State Bank of India reported in 2007 AIR (Madras) 148 as well as the subsequent decision of the Division Bench of the Madras High Court in the case of P. Vinodh Kumar v. Recovery Officer Debts Recovery Tribunal, Manager Indian Bank and D. Mohanreported in 2012 AIR (Madras) 46 in support of his submissions that the transaction/sale deed in favour of the original applicant which is admittedly after the Bank initiated the proceedings under Section 13 of the SARFAESI Act is a nullity. 22. Heard learned advocates appearing for respective parties at length. 23. At the outset it is required to be noted that the present is a glaring example of fraud committed by the mortgagor in connivance with the subsequent purchaser only with a view to dupe the realization of the legitimate dues of the Bank to recover the outstanding amount of Rs. 3,46,55,433 + further interest charges etc. At this stage it is required to be noted that it is not in dispute that so far as the borrowers/mortgagors and the partners of M/s. Shukan Palace Infrastructure have duped number of investors and even the Banks and the financial institutions by not only taking loan/credit by mortgaging the mortgaged property in question but even the entire “Shukan Palace-I”. 24. From the chronological events and the undisputed facts it is not in dispute that the mortgaged property was as such mortgaged by the mortgagor as a mortgaged property. Not only that even the title deed was also deposited with the Bank. It is an admitted position that a large sum is due and payable to the petitioner Bank to the extent of Rs. 3,46,55,433/-. Therefore, the Bank initiated auction under the provisions of the SARFAESI Act to realize its dues. That the Bank initiated the auction under Section 13(2) of the SARFAESI Act by issuing notice to the concerned borrowers/mortgagors on 18.01.2014 The original applicant is alleged to have purchased the mortgaged property in question by sale deed dated 25.04.2014 which is much after the Bank issued notice under Section 13(2) of the SARFAESI Act. That the Bank initiated the auction under Section 13(2) of the SARFAESI Act by issuing notice to the concerned borrowers/mortgagors on 18.01.2014 The original applicant is alleged to have purchased the mortgaged property in question by sale deed dated 25.04.2014 which is much after the Bank issued notice under Section 13(2) of the SARFAESI Act. On the basis of such sale deed and claiming right under the said sale deed dated 25.04.2014, the original applicant has instituted the present Securitization Application No. 46/2016 in the year 2016 at the time when the Bank proceeded further to e-auction the mortgaged property in question and the notice was issued. It is required to be noted that after the notice issued under Section 13(2) was issued on 18.01.2014, the Bank put the symbolic possession on 12.06.2014 and the notice of the said symbolic possession was published on 15.06.2014 as per the Rules. No objection was raised by the mortgagor either challenging the notice under Section 13(2) of the SARFAESI Act or initiation of the proceedings under the SARFAESI Act with respect to the mortgaged property in question. That by submitting the securitization application, the original applicant has challenged the notice under Section 13(2) of the SARFAESI Act on the basis of the sale deed dated 25.04.2014, though earlier at no point of time the mortgagor challenged the said notice under Section 13(2) of the SARFAESI Act. As observed hereinabove and at the cost of repetition it is required to be noted that present securitization application has been preferred in the year 2015 challenging the notice under Section 13(2) of the SARFAESI Act, which was issued in month of January 2014, i.e. after a period of almost two years. 25. It is required to be noted that as per sub-section (13) of Section 13 of the SARFAESI Act, any transaction by way of sale, lease or otherwise with respect to the secured assets referred to in notice under Section 13(2) of the SARFAESI Act, after the notice under Section 13(2) of the SARFAESI Act shall be void and a nullity. It is required to be noted that as per sub-section (13) of Section 13 of the SARFAESI Act, any transaction by way of sale, lease or otherwise with respect to the secured assets referred to in notice under Section 13(2) of the SARFAESI Act, after the notice under Section 13(2) of the SARFAESI Act shall be void and a nullity. As per sub-section (13) of Section 13 of the SARFAESI Act, no borrower shall after receipt of the notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of the secured assets referred to in the notice, without prior written consent of the secured creditor). In the present case admittedly before entering into transaction in favour of the original applicant which is after the notice under Section 13(2) of the SARFAESI Act, prior written consent of the Bank-secured creditor has not been taken. Under the circumstances, transaction in favour of the original applicant is absolutely nullity and void and therefore, the original applicant cannot get any right, title or interest in the mortgaged property on the basis of such sale deed which is a nullity. Under the circumstances, as such the learned Tribunal ought not to have entertained the securitization application. In any case the learned Tribunal ought not to have granted such an order restraining the Bank from e-auctioning the mortgaged property in question at the instance of the original applicant whose transaction is a nullity. 26. How the mortgagor and the original applicant have played the fraud can be demonstrated from the fact that though the sale deed in favour of the original applicant is dated 25.04.2014 and though in the sale deed it is stated that the original applicant has paid the full sale consideration by cheques and even cheque numbers are also given, but admittedly no cheque numbers are mentioned and even as per the case on behalf of the original applicant, the amount of sale consideration has been paid subsequently. Under the circumstances, as such no sale consideration was paid by the original applicant No. 1 at the time when the sale deed was executed in his favour. 27. Under the circumstances, as such no sale consideration was paid by the original applicant No. 1 at the time when the sale deed was executed in his favour. 27. It is also required to be noted that though the original applicant claims to have purchased the mortgaged property in question by registered sale deed on 25.04.2014 and on payment of sale consideration and though according to him when the Bank took the actual, physical possession on 12.06.2014 pursuant to the order passed by the learned District Magistrate under Section 14 of the SARFAESI Act, from the panchnama it appears that at the time when the Bank Officers went to take the possession of the mortgaged property in question, in the month of February 2016, wife of the original owner/mortgagor was present in the bungalow/mortgaged property and the original applicant was not in possession of the mortgaged property in question. From the panchnama it appears that at that time the wife of the original mortgagor after seeing the officers who had came to take the possession ran away. That thereafter the Bank had taken the actual, physical possession by drawing the panchnama and doing the videography. From the aforesaid it can be said that a systematic fraud has been committed by the mortgagor in connivance with the original applicant with malafide intention only with a view to dupe the legitimate dues of the Bank and the realization of large sum of amount by the Bank to the extent of Rs. 3,46,55,433 + further interest charges etc. 28. It is required to be noted that even the original borrower/mortgagor, M/s. Shukan Palace Infrastructure and its partners have duped so many investors who have purchased the residential bungalows in the scheme viz. Shukan Palace-I, Ghatlodiya, Ahmedabad. 29. Considering the aforesaid facts and circumstances the learned Tribunal has materially erred in passing the impugned order restraining the Bank from proceeding further with e-auction of the mortgaged property which was mortgaged by the mortgagor while taking the huge loan/credit/financial assistance. 30. Shukan Palace-I, Ghatlodiya, Ahmedabad. 29. Considering the aforesaid facts and circumstances the learned Tribunal has materially erred in passing the impugned order restraining the Bank from proceeding further with e-auction of the mortgaged property which was mortgaged by the mortgagor while taking the huge loan/credit/financial assistance. 30. Now, so far as the contention on behalf of the original applicant and the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Gangadhar Vishwanath Ranade (Supra) in support of his above submission that the Bank Officer/Bank had no jurisdiction to declare the transfer of property in favour of a third party to be void is concerned, on considering the provisions of the Income Tax Act which fell for consideration before the Hon'ble Supreme Court and considering the facts of the case on hand, said decision shall not be applicable to the facts of the case on hand more particularly considering section 13 of the SARFAESI Act. 31. Now, so far as the submission on behalf of the original applicant that the order passed by the learned District Magistrate under Section 14 of the SARFAESI Act authorizing the Bank/Bank Officer to take the possession was illegal and therefore, consequent action of the Bank in taking over the possession can be said to be illegal is concerned, at the outset it is required to be noted that so far as the original mortgagor is concerned, he has not challenged the order of taking over the possession. As observed hereinabove, the possession was taken over from the wife of the mortgagor/mortgagor and not from the original applicant. The aforesaid has not been appreciated by the learned Tribunal while passing the impugned order. 32. Now, so far as the submission on behalf of the original applicant that as against the impugned order the petitioner Bank has a statutory remedy available by way of appeal before the Debts Recovery Tribunal, Mumbai and therefore, the present petition may not be entertained is concerned, at the outset it is required to be noted that as such the post of Member/s of Debts Recovery Appellate Tribunal, Mumbai is vacant and there is no incumbent and therefore, the petitioner is justified in approaching this Court. 33. 33. Even otherwise considering the impugned order passed by the learned Tribunal and as observed hereinabove the learned Tribunal has exceeded in its jurisdiction in entertaining the securitization application and passing the impugned order at the instance of the original applicant, the transaction in whose favour is a nullity, we are of the opinion that this is a fit case to entertain the petition and exercise the powers under Article 226 of the Constitution of India. 34. In view of the above and for the reasons stated above the petition succeeds. Impugned order dated 11.03.2016 passed by the learned Debts Recovery Tribunal-I, Ahmedabad in Securitization Application No. 46/2016 is hereby quashed and set aside and the petitioner Bank is permitted to proceed ahead with e-auction of the mortgaged property in question viz. Bungalow No. 15, Shukan Palace-I, Ghatlodiya, Ahmedabad. Rule is made absolute to the aforesaid extent. No costs. 35. Shri. Majmudar, learned advocate appearing on behalf of the petitioners in Special Civil Application No. 17901/2015 seeks permission to withdraw the Special Civil Application No. 17901/2015 with a liberty to avail any other remedy that may be available to the petitioner at appropriate stage. 36. Permission is, accordingly, granted. Special Civil Application No. 17901/2015 is dismissed as withdrawn with above liberty. FURTHER ORDER 37. At this stage, Shri. Manav Mehta, learned advocate appearing on behalf of the respondent in Special Civil Application No. 7030/2016 has requested to continue the interim order which was granted by the learned Tribunal. 38. The prayer is opposed by Shri. Pranav Desai, learned advocate appearing on behalf of the petitioner. 39. However, in the facts and circumstances of the case and so as to enable the respondent to approach the higher Forum, interim order which was granted by the learned Tribunal, which is not set aside, is hereby directed to continue till 23.10.2016 However, the respondent is also directed to maintain status quo. Meaning thereby, the respondent may not transfer and/or alienate the property in any manner whatsoever, on the basis of the sale deed in his favour, which is now held to be nullity.