JUDGMENT : 1. The present petitions are filed by the Petitioners under Articles 14, 19, 21 and 226 of the Constitution of India as well as under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”) for the prayers as prayed for in detail inter alia that appropriate writ, order or direction may be issued quashing and setting aside the impugned notice dated 12.07.2014 issued by Respondent No.1 – Bank of Baroda, Ashram Road Branch, Ahmedabad in exercise of power under the SARFAESI Act on the ground stated in the memo of petition. 2. The facts of the case briefly summarized are as follows. 3. The petitioners in this group of petitions are the members of the scheme constructed by the respondent Shukan Gold Corporation in the land bearing Survey No. 236, Town Planning Scheme No.33, Final Plot No. 64/B. Respondent No.2 – M/s Shukan Gold Corporation, a partnership firm, executed various agreement to sale in favour of the Petitioners and other members, assigning rights over the constructed properties referred to in detail at Annexure-A and they have been allotted the units/flats. The petitioners have also taken the loan against the individual units/flats allotted to them. It is averred that the title clearance certificate has been obtained by them before getting the loan, for which, such a title clearance certificate in respect of one of the member is produced on record at Annexure-B of Special Civil Application No.11944/2014. Similarly, some of the members are also allotted by registered sale deed executed by Respondent No.2. Reference is made to one such example in respect of Flat No. E101 in favour of one Mohandasan Pannanchikal and some other named Parekh Jitendrakumar Ishwarlal in respect of Flat No. F403. It is averred that the petitioners have paid the sale consideration for purchase of the flat in the scheme constructed by Respondent No.2 on 16.08.2011. However, a mortgage deed came to be executed between Respondent No.2 and Respondent No.1 and the petitioners were not aware about any such mortgage deed. It is stated that no public notice has been issued either by Respondent No.1 or by Respondent No.2 at the time of execution of such mortgage. It is also averred that none of the members of scheme known as “Shukan Gold” were intimated regarding execution of such mortgage deed. It is stated that no public notice has been issued either by Respondent No.1 or by Respondent No.2 at the time of execution of such mortgage. It is also averred that none of the members of scheme known as “Shukan Gold” were intimated regarding execution of such mortgage deed. Therefore, it is contended that Respondent no.1-bank has also not taken any care before entering into the mortgage deed dated 16.08.2011. Therefore, it is contended that it is collusive and causes prejudice to the rights of the petitioners, who are the bona fide purchasers for value. It is also averred that though the mortgage is said to have been executed on 16.08.2011, no entry has been reported or registered regarding the mortgage till the year 2014. It is averred that on the basis of the search taken from the office of Sub-Registrar on 27.06.2012, no document of 16.08.2011 is shown to have been executed and a copy of the search report is produced at Annexure-F of Special Civil Application No.11944/2014. Therefore, it has been contended that on one hand, Respondent No.2 had executed agreement to sale or sale deed in favour of the petitioners after receiving the valuable consideration and a huge amount in respect of the flats constructed by Respondent No.2 and on the other hand, the flats purchased by the members of the Society are given by way of mortgage to various banks by creating charge over individual properties and, when the public notice dated 13.04.2014 was published by Respondent No.1 about creation of charge over the land in question pursuant to mortgage deed dated 16.08.2011, the petitioners came to know about the same. Therefore, the reply was given by the members of the Society i.e. Shukan Gold Housing Service Society through lawyer dated 22.04.2014 produced at Annexure-I. Thereafter, as stated in detail, a criminal complaint was also came to be filed by one of the members of the petitioners against the partners of Respondent No.2 – M/s Shakun Gold Corporation. Therefore, the contentions are raised that it is the case of the petitioners that with a mala fide intention and in collusive manner, the mortgage deed is entered between the Respondent No.1 and Respondent No.2 inter se without any intimation to the members of the Cooperative Society i.e. the petitioners. Therefore, the contentions are raised that it is the case of the petitioners that with a mala fide intention and in collusive manner, the mortgage deed is entered between the Respondent No.1 and Respondent No.2 inter se without any intimation to the members of the Cooperative Society i.e. the petitioners. It is therefore contended that such collusive act may affect the rights of the present petitioners, and the Respondent No.1 Bank has also not taken care at the time of entering into the mortgage deed with Respondent No.2 regarding actual physical verification regarding any transaction or purchase of the said properties. It is specifically contended that the Reserve Bank of India has published a Circular dated 27.08.2009 making it compulsory for the builders to publish the details of mortgage in the brochure or in the newspaper, copy of which is produced at Annexure-M of Special Civil Application No.11944/2014. Therefore, it is contended that it was the duty cast upon Respondent No.1 to direct Respondent No.2 to publish any such details in its brochure as they have failed to discharge the statutory obligation. The petitioners’ right may not be prejudiced as they were not aware of execution of such mortgage deed. It is specifically stated that Respondent No.1 – Bank may have given huge loan to Respondent No.2 without proper verification or carried out necessary visit, which resulted into, ultimately a criminal complaint filed by the members, but, Respondent No.1 Bank has not filed any criminal complaint against the partners of Respondent No.2 – M/s Shakun Gold Corporation, which suggests the collusion. Therefore, it is contended that the impugned notice in exercise of purported powers under the SARFAESI Act may be quashed and set aside. 4. Affidavit-in-Reply is filed by Respondent no.1-bank contending inter alia that the petition is not maintainable under Article 226 as it involves highly disputed questions of facts which cannot be adjudicated in such petition under Article 226 of the Constitution of India. It is also contended that Respondent No.1 – Bank had given a loan of Rs.20 crores after verifying the documentary evidence to Shakum Gold. It is contended that at the time of sanction of loan, it was declared by the borrower i.e. Respondent No.2 M/s Shukan Gold Corporation that it had booked 77 flats out of 268 flats and 12 shops. It is contended that at the time of sanction of loan, it was declared by the borrower i.e. Respondent No.2 M/s Shukan Gold Corporation that it had booked 77 flats out of 268 flats and 12 shops. The Respondent No.1 – Bank has given No Objection Certificate in favour of those 50 flat holders since those flat holders have deposited the amount of price towards the flat payable to the builder with the Bank in escrow account opened by the Bank in the name of Respondent No.2. It is contended that a list of such flat holders is produced at Annexure-R3 of reply. However, it is contended that Respondent No.2 had executed an undertaking on 16.08.2011 whereby it had undertaken that they will regularly pay the interest on disbursement towards the cost of construction and will not sell the property without prior consent of the Bank. It is therefore contended that term loan was reviewed and the outstanding balance is approximately Rs. 13.37 crores as on 27.12.2012. Thereafter, Respondent No.1 Bank issued a public notice dated 13.04.2014 in Divya Bhaskar newspaper inviting attention of public at large that the property owned by Respondent No.2 i.e. M/s Shukan Gold Corporation at village Gota with construction thereon is mortgaged with Respondent no.1-bank. It is therefore contended that all the persons concerned should inter into such transaction in respect of such property with open eye. It is also contended that as Respondent No.2 – Shukan Gold Corporation has failed to make the payment of the loan, their account has become Non Performing Asset, and therefore, demand notice under SARFAESI Act was given by Respondent No.2 Bank in Divya Bhaskar on 12.07.2014. It is therefore contended that the bank has issued a statutory power under Section 13(4) of the SARFAESI Act and the persons like petitioners cannot claim any right merely because they have been a members by booking the flats or the units. The demand notice has been published for taking over possession of the property for valuation to repay the loan. Therefore, it is contended that all transactions which have been done by Respondent No.1 with an intention to defeat the case of the present Respondent and such a petition deliberately filed to defeat the interest of Respondent no.1-bank may not be entertained. Therefore, it is contended that all transactions which have been done by Respondent No.1 with an intention to defeat the case of the present Respondent and such a petition deliberately filed to defeat the interest of Respondent no.1-bank may not be entertained. It is contended that Respondent No.2 has mislead the Bank as it was disclosed by the partners that out of 278 flats, they have got booking for 77 flats and 12 shops. It was also undertaken by the partners of Respondent No.2 firm that they will not give possession of the said flats and shops to the respective holders without obtaining prior permission and NOC from the Respondent No.1 Bank. However, Respondent No.2 firm has entered into a transaction and sold the flats and shops and handed over the possession without obtaining prior permission of Respondent No.1 – Bank. Respondent No.2 has not acted upon the promise and has taken away the money by depositing in another account which is not meant for that. Therefore, Respondent No.2, in connivance with the Petitioners has committed a fraud on Respondent no.1-bank and any such attempt to cause prejudice to the right of Respondent No.1 Bank to recover the money which is a public money, may not be permitted. It is stated that Respondent No.2 without routing the funds through escrow account of the Bank, sold the flats and did not deposit the amount received from the members with the bank and therefore Respondent No.1 has filed an application before the Debts Recovery Tribunal, Ahmedabad as the amount has not been deposited in escrow account. Original Application No. 249 of 2014 along with necessary application came to be filed with the DRT. It is also contended that it is the duty of Respondent No.2 to disclose full facts. But, for the reasons best known to the Sub-Registrar, the fact of mortgage is not reflected, but it does not mean that right of respondent no.1-bank would vanish. It is sought to be contended that once the property is mortgaged and the mortgage is registered with the Sub-Registrar, the date of registration become the date of deemed knowledge as per the provisions of the Evidence Act and the law declared by the Hon'ble Apex Court in a judgment in case of Dilboo (Smt.) (Dead) by Lrs. & Anr. VS. Dhanraji (Smt.) (Dead) & Ors. reported in (2007) 7 SCC 702. & Anr. VS. Dhanraji (Smt.) (Dead) & Ors. reported in (2007) 7 SCC 702. It is also contended that the title clearance certificate is not in accordance with the provisions of law, and therefore, it is a debatable issue. It is contended that Respondent No.2 though fully aware that the entire land admeasuring 6192 Sq. meters on the two Final Plots has been mortgaged with Respondent No.1 and having accepted the terms and conditions for sanction of the loan, has, in connivance with the Petitioners by joining hands with the petitioners has sold the flats and handed over the possession without depositing the consideration received in escrow account. It is therefore contended that no possession of the flats or the shops could have been given by Respondent No.2 except after obtaining the NOC from Respondent No.1 Bank. It is reiterated that only in respect of 50 flats NOC has been obtained and thereafter Respondent No.2 has adopted the practice with an intention to commit fraud with the Bank and had handed over the possession to such flat owners without depositing the amount in escrow account and thereby caused prejudice to the rights of Respondent No.1 Bank and therefore notice has been issued under the SARFAESI Act. It is therefore contended that the petition may not be entertained. It is also contended that the defence of bona fide purchaser would not be applicable. 5. The Hon'ble Apex Court in a judgment in case of Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd. & Ors. reported in (2014) 6 SCC 1 has made a reference to other judgment and it is contended that the Bank has not colluded with Respondent No.2, and therefore, the protection given by the Hon'ble Apex Court in the aforesaid judgment will not help the case of the petitioners on the ground of bona fide purchaser. It is therefore contended that the allegation made by the petitioners against the Bank are not correct and on the contrary the petitioners are trying to divert the attention of the court including the fact of mortgage created in favour of the Bank. It is contended that the possession has been given by Respondent No.2 after the loan is sanctioned and creation of mortgage. It is contended that the possession has been given by Respondent No.2 after the loan is sanctioned and creation of mortgage. Therefore, without NOC from the Bank, Respondent No.2 could not have conveyed the flats or the units and such an attempt with an intention to defraud the funds of the Bank deserves to be dismissed and the contention about the bona fide purchaser may not be valid. 6. Heard learned Senior Counsel Shri Shalin Mehta appearing with learned Advocate Shri Tattvam Patel for the petitioners of Special Civil Application No.11944 of 2014 and Special Civil Application No.18740 of 2017, learned Senior Counsel, Shri S.I. Nanavati appearing with learned advocate, Mrs.V.D. Nanavati for the petitioners of Special Civil Application Nos.17807, 18825, 19443, 19481, 20630 & 20631 to 20672 of 2015, learned advocate, Shri B.T. Rao for the respondent-Bank and learned AGP Shri Bhargav Pandya for the respondent-State. 7. Learned Senior Counsel Shri Shalin Mehta appearing with learned Advocate Shri Tattvam Patel for the petitioners of Special Civil Application No.11944 of 2014 and Special Civil Application No.18740 of 2017 referred to the papers at length and submitted that the petitioners are the members of the Housing Society who have been allotted the units of flats with agreement to sale or a sale deed. He submitted that Shukan Cooperative Society has been made and the registered agreement to sale is executed by Respondent No.2 and in some cases even the sale deed by Respondent No.2. Learned Senior Counsel Shri Shalin Mehta submitted that the petitioners are the bona fide purchasers for a value or a consideration and as could be seen from the record, the so called mortgage in favour of Respondent No.1 has not been registered till 2014 though it is stated to have been executed in 2011. Learned Senior Counsel Shri Shalin Mehta therefore submitted that the conduct of Respondent No.2 and Respondent No.1 is required to be considered. Learned Senior Counsel Shri Shalin Mehta submitted that the Bank which is said to have advanced the loan has not taken care or exercised a care which normally a prudent man would exercise, only with a view to favour Respondent No.2. Learned Senior Counsel Shri Shalin Mehta submitted that the mortgage of the land executed has not been registered and thereafter Shukan Cooperative Housing Society has been made in 2012. Learned Senior Counsel Shri Shalin Mehta submitted that the mortgage of the land executed has not been registered and thereafter Shukan Cooperative Housing Society has been made in 2012. He submitted that the petitioners who are the members of such Housing Society would not be aware of any mortgage and since it has not been registered till 2014, the date of registration could not relate back to the previous years. He strenuously submitted that if such interpretation is accepted it would be against the principle of fairness and equity. He pointedly referred to the papers. Learned Senior Counsel Shri Shalin Mehta therefore submitted that the contention about maintainability of the petition under Article 226 of the Constitution of India is misconceived even if there is an alternative remedy. It has been clearly observed while deciding the judgment in case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors., reported in (1998) 8 SCC 1 . Learned Senior Counsel Shri Shalin Mehta submitted that there are no disputed questions of fact as the facts are very much on record which would establish about the violation of fundamental rights and principles of natural justice. Therefore, he submitted that as there is no notice given to the occupants like the petitioners who are affected, such a notice cannot be implemented. Learned Senior Counsel Shri Shalin Mehta has referred to interest in the property and submitted that Article 300 of the Constitution of India may not be a fundamental right but it confers the right to the property and the persons like petitioners have a right to protect their property which may not be deprived of without following the procedure or rules of natural justice. 8. Learned Senior Counsel Shri Shalin Mehta submitted that no notice has been given to the occupants like the petitioners and the Bank has not taken care to issue notice to the principal borrower, guarantors and have given such notice and tried to proceed for recovery against the occupants. He submitted that therefore, it is in violation of rules of natural justice and fairness. 9. Learned Senior Counsel Shri Shalin Mehta submitted that the petitioners are bona fide purchasers for a value without notice. He submitted that the mortgage of the property has not been registered and therefore no knowledge could be attributed to the petitioners. He submitted that therefore, it is in violation of rules of natural justice and fairness. 9. Learned Senior Counsel Shri Shalin Mehta submitted that the petitioners are bona fide purchasers for a value without notice. He submitted that the mortgage of the property has not been registered and therefore no knowledge could be attributed to the petitioners. He submitted that the notice of mortgage is published on 13.04.2014 though the mortgage is created in the year 2011. Learned Senior Counsel Shri Shalin Mehta therefore submitted that even for the purpose of knowledge the date of entry would be relevant and in the facts of the case, it is 2014 and prior thereto and, hence, the petitioners could not have the knowledge. He submitted that the reliance placed on a judgment of the Hon'ble Apex Court in case of Dilboo (Smt.) (Dead) by Lrs. & Anr. v. Dhanraji (Smt.) (Dead) & Ors. (supra), where the date of registration is considered for the purpose of knowledge is misconceived as such a registration later on cannot relate back to the previous date. 10. Learned Senior Counsel Shri Shalin Mehta submitted that the Bank has the knowledge about the fact that the petitioners are the occupants and it has been acknowledged by the Bank. He pointedly referred to the papers and particularly page 223 and submitted that it supports the say of the petitioners that the Bank is aware and could not have permitted Respondent No.2 to enter into the transaction as the amount paid by the purchaser was required to be deposited in escrow account. Learned Senior Counsel Shri Shalin Mehta submitted that had the Bank been following the procedure and vigilant, the amount could not have been siphoned off in another account which is now stated in the affidavit by Respondent No.1 Bank. He submitted that the negligence or connivance with builder Respondent No.2 may not be at the cost of the petitioners who are bona fide purchaser. He referred to the Circular of the RBI and submitted that Respondent No.1 Bank had to follow it strictly. 11. Learned Senior Counsel, Shri S.I. Nanavati appearing with learned advocate, Mrs. He submitted that the negligence or connivance with builder Respondent No.2 may not be at the cost of the petitioners who are bona fide purchaser. He referred to the Circular of the RBI and submitted that Respondent No.1 Bank had to follow it strictly. 11. Learned Senior Counsel, Shri S.I. Nanavati appearing with learned advocate, Mrs. V.D. Nanavati for the petitioners of Special Civil Application Nos.17807, 18825, 19443, 19481, 20630 & 20631 to 20672 of 2015 submitted that it is a case of abuse of the statutory powers when the respondent no.1 has in connivance with the respondent no.2 failed to protect the interest of the bank and now the persons like petitioners, who are bonafide purchasers for a value without notice, are harassed. Learned Senior Counsel, Shri Nanavati referred to the background of the facts with much details and submitted that as stated by learned Senior Counsel, Shri Mehta, the mortgaged deed was not registered initially and even after the verification or the search with the revenue authority, it could not be recovered and, therefore, even after the title clearance certificate was obtained by the persons like the petitioners when there is not such liability disclosed, they have entered into the transaction. Learned Senior Counsel, Shri Nanavati submitted that like any other reasonable man, procedure has been followed, title clearance certificate has been obtained, verification has been made and, thereafter, they have entered into the transaction for the purchase of the flats or the unit, which cannot now be questioned. Learned Senior Counsel, Shri Nanavati submitted that the submission made by learned advocate for the bank that there is mortgage created in favour of the respondent no.1-bank and, therefore, all transactions are subject to such mortgage, is required to be examined in background of the facts, which suggests clear mischief at the connivance of the respondent no.2 and the officers of the respondent no.1-bank. Learned Senior Counsel, Shri Nanavati submitted that as it is revealed from the record, the petitioners in this petition have taken loan either from same bank or they have taken NOC from the respondent no.1-bank for the purpose of securing the advances from other bank or the institution like LIC. He, therefore, submitted that NOC is given by the respondent no.1-bank itself therefore now is estopped from raising any such dispute claiming that the petitioners are not bona fide purchasers for a value without notice. He, therefore, submitted that NOC is given by the respondent no.1-bank itself therefore now is estopped from raising any such dispute claiming that the petitioners are not bona fide purchasers for a value without notice. Learned Senior Counsel, Shri Nanavati submitted that relevant aspects, which are required to be noted, are that some of the petitioners have taken loan from the same respondent no.1-bank or other financial institution or the banks and they have also got things verified by title clearance certificate and search. He submitted that the title clearance certificate cannot be doubted when the respondent no.1-bank itself has not registered the mortgage, which is said to have been created earlier in the year 2011. He strenuously submitted that there is no explanation as to why the registration has not taken place and if the public institution like the respondent no.1-bank has mortgaged created in the favour, necessary entry including the registration is required to be made and they cannot have any excuse that it might have been left when the banks have their panel of lawyers as well as legal advisers and the legal department. Learned Senior Counsel, Shri Nanavati therefore submitted that such excuses are rather over simplification to conceal the misdeeds of the respondent no.1-bank and its officers. 12. Learned Senior Counsel, Shri Nanavati submitted that it is in this background, the submissions made with much emphasis on the alternate remedy and exercise of discretionary jurisdiction under Article 226 of the Constitution of India are required to be considered. He submitted that since the mortgage was not created or was not brought to the notice and, therefore, transaction has taken place, the persons like petitioners cannot be saddled with liability. He submitted that if before the Debt Recovery Tribunal, it is relegated, the persons like petitioners having purchased after proper procedure without any notice or mortgage or in many cases also, no objection from the respondent no.1-bank, now cannot be dragged into litigation in Debt Recovery Tribunal. He submitted that if money has to be realized by the respondent no.1-bank, it has to be from the mortagee and can have appropriate remedy and the petitioners cannot be saddled with the liability, who have taken loans and again cannot be made to discharge the liability of the respondent no.2 in the name of public money. He submitted that if money has to be realized by the respondent no.1-bank, it has to be from the mortagee and can have appropriate remedy and the petitioners cannot be saddled with the liability, who have taken loans and again cannot be made to discharge the liability of the respondent no.2 in the name of public money. Learned Senior Counsel, Shri Nanavati referred to and relied upon the judgment of the Hon’ble Apex Court in case of Harshad Govardhan Sondagar (supra). Learned Senior Counsel, Shri Nanavati also referred to the judgment of the Hon’ble Apex Court in case of Vishal N. Kalsaria Vs. Bank of India & Ors., reported in (2016) 3 SCC 762 and submitted that in the said judgment, issue with regard to the right of the lessee or the tenant or the borrower in possession has been considered with reference to the provision of the SARFAESI Act. It has been observed that any such right to reopen the possession of the secured assets by the tenant or the lessee may be protected, which is again required to be considered with reference to the material and evidence and the factual aspects and the provision of the SARFAESI Act and the Transfer of Property Act. 13. Learned Senior Counsel, Shri Nanavati also referred to the judgment of the High Court in case of Authorized Officer Vs. D ilipbhai Jayantilal Sanghavi delivered in Special Civil Application No. 17901 of 2015 dated 01.09.2016 (2016 (0) AIJELHC 236920). He tried to distinguish the judgment submitting that the facts are totally different and it is not connivance of the petitioners with the original borrower (builder) like in that case. He emphasized that in the facts of the case, it is other way around and as stated above, when the submission is made that once the mortgage is created without consent, the respondent no.2 could not have entered into the transaction, also would not be much available when in many cases, NOC is granted by the respondent no.1-bank. He submitted that even assuming that in many cases, such submission is taken even then, as stated by learned Senior Counsel, Shri Mehta with much details that the amount deposited is siphoned off, which cannot be without negligence or connivance of the respondent no.1-bank and, therefore, any such submission disputing about the transaction of the petitioners as bona fide, is misconceived. Learned Senior Counsel, Shri Nanavati also referred to the judgment of the Hon’ble Division Bench of the High Court of Gujarat in case of Pranjivan Purishottam Zaveri & Anr. Vs. Dena Bank Through Authorised Officer & Ors., reported in 2011 (3) GLH 632 and submitted that on the contrary, as observed in Paragraph No.17, it has been clearly observed that it cannot be said that by affording protection in given set of evidence, the object of SARFAESI Act is defeated. He emphasized the observation, “justice cannot be done by doing injustice with someone.” 14. Learned advocate, Shri Rao for the respondent no.1-bank has referred to the papers and also the provisions of the SARFAESI Act. Learned advocate, Shri Rao submitted that there is registered mortgage dated 16.08.2011 and, therefore, any transaction which has taken placed, will be subject to this mortgage. He also referred to the judgment of the Hon’ble Apex Court in case of Dilboo (Smt.) (Dead) by Lrs. (supra) and emphasized the observations made therein. He referred to the documents produced on record and also referred to document produced at Annexure-C regarding the mortgage with deposit of title deeds. He submitted that once this mortgage deed is executed, it will relate back to the date of transaction and no right, title, interest can be said to have been created in favour of the petitioners, who claimed to be bona fide purchasers. Learned advocate, Shri Rao also referred to the judgment of the Hon’ble Apex Court in case of Muddasani Venkata Narsaiah (dead) Through Legal Representatives Vs. Muddasani Sarojana, reported in (2016) 12 SCC 288 and also the judgment of the Hon’ble High Court of Gujarat in case of Rakesh Shivbhagwan Agrawala Vs. Talati-cum-Mantri, reported in 2002 (2) GLH 322. Learned advocate, Shri Rao also referred to the judgment of the Hon’ble Apex Court in case of Narayan Laxman Patil Vs. Gala Construction Company Pvt. Ltd. & Ors., reported in (2016) 14 SCC 388 and also the judgment of the Hon’ble Division Bench of this High Court in case of Authorized Officer Vs. Dilipbhai Jayantilal Sanghavi delivered in Special Civil Application No. 17901 of 2015 dated 01.09.2016 (2016 (0) AIJELHC 236920), which is also with regard to the bungalow at Shukan Palace, Ghatlodia referring to the said provision. Dilipbhai Jayantilal Sanghavi delivered in Special Civil Application No. 17901 of 2015 dated 01.09.2016 (2016 (0) AIJELHC 236920), which is also with regard to the bungalow at Shukan Palace, Ghatlodia referring to the said provision. He pointedly referred to the observations made with regard to the provisions of the SARFAESI Act and emphasized that when the bank has taken possession, subsequent documents may not have any relevance. He submitted that if the mortgager in connivance with the same persons like the petitioners with malafide intention or otherwise, attempts to transfer the mortgaged property with a view to dupe the legitimate dues of the bank and/or realization of the amount, the discretionary jurisdiction may not be exercised. He submitted that in any case, the petitioners may be relegated to the Debt Recovery Tribunal, Ahmedabad and the bank may be allowed to proceed further. Learned advocate, Shri Rao submitted that as observed, without the written consent of the secured creditor like the bank in the present case, any transfer made or any transaction entered into in favour of the persons like the petitioners after the notice under Section 13(2) of the SARFAESI Act would be void and, therefore, the petitioners cannot make any grievance. 15. Learned advocate, Shri Rao, therefore, pointedly referred to the provisions of the SARFAESI Act and also the definition of Section 2(zf) defining the “security interest” and submitted that the Security Interest (Enforcement) Rules, 2002 have to be read with Section 13(2) of the SARFAESI Act. He submitted that the Rule 4 provides for the detailed procedure and Rule 8 refers to the immovable property, which is secured by the bank. He submitted that as provided in Rule read with Section 13(2) of the SARFAESI Act, notice has been given and, therefore, the persons like petitioners cannot be said to be bonafide purchasers. He again emphasized that title clearance certificate is not proper as had the title clearance certificate been obtained with proper verification, it would have revealed about the mortgage with the bank. Learned advocate, Shri Rao also referred to the provision of the Transfer of Property Act. He referred to Section 37 as also Section 55 of the Transfer of Property Act. Learned advocate, Shri Rao also referred to the provision of the Transfer of Property Act. He referred to Section 37 as also Section 55 of the Transfer of Property Act. He submitted that rights and liability of the buyer and seller are provided in Section 55 of the Transfer of Property Act and if the requirements of Transfer of Property Act are not fulfilled, sale will be subject to the mortgage and/or such sale will not affect the right. He also submitted that if the buyer or seller has committed any irregularity by not disclosing to the buyer like the petitioners, it cannot bind the bank as it is a matter between two individual and cannot prejudice the rights of the bank as a mortgagor. He submitted that if the seller like builder has not disclosed to other party that there is mortgage with the bank, it would not alter or affect the right of the bank. He submitted that the buyer may proceed against the seller and/or for any kind of mischief played. He submitted that in the instant case, the criminal case is also pending. Learned advocate, Shri Rao submitted that since the case is pending, he may confine only to the provision of the SARFAESI Act and the present proceeding and, therefore, the submissions about the bonafide purchasers for a value may not be accepted. Learned advocate, Shri Rao submitted that Section 65(A) of the Transfer of Property Act does not apply as it is not a lease and it applies to the transaction of lease only and not to the transaction of sale. He again referred to Section 55 of the Transfer of Property Act and submitted that any such omission therefore has no relevance. 16. Learned advocate, Shri Rao again referred to Section 17 of the SARFAESI Act and submitted that after the amendment, scope has been widen and it has been provided “any person aggrieved”, meaning thereby, now it is open for the third party like the petitioners herein to file appropriate application before the Debt Recovery Tribunal. He also referred to Section 17(4) of the SARFAESI Act. He submitted that Section 17(4) of the SARFAESI Act clearly provides that secured creditor shall be entitled to take recourse as specified under Section 13 of the SARFAESI Act for recovery of the debt. He also referred to Section 17(4) of the SARFAESI Act. He submitted that Section 17(4) of the SARFAESI Act clearly provides that secured creditor shall be entitled to take recourse as specified under Section 13 of the SARFAESI Act for recovery of the debt. He also referred to Section 13 of the SARFAESI Act which has a reference to the enforcement of the security interest. Learned advocate, Shri Rao referred to Section 35 of the SARFAESI Act and submitted that as it provides, the provision of this Act will have overriding effect and it will override other laws. Learned advocate, Shri Rao therefore strenuously submitted that when the provision of the SARFAESI Act has overriding effect read with Security Interest (Enforcement) Rules, 2002, bank is entitled to proceed for recovery of the amount, which is public money. He submitted that therefore as the amount advanced by the bank is public money, discretionary jurisdiction of the Court may not be exercised when as stated above, the persons like the petitioners are having recourse before the Debt Recovery Tribunal. He submitted that if the lease or the transaction is created and the person is put into possession earlier then, he has to show possession that he was inducted prior to creation of the mortgaged. Therefore, learned advocate, Shri Rao submitted that again it would require examination and scrutiny of the material and evidence based on the details with regard to every transaction and, therefore, the present petition may not be entertained and the application may be allowed to make necessary application before the Debt Recovery Tribunal with appropriate direction. 17. Learned advocate, Shri Rao also submitted that the judgment of the Hon’ble Apex Court in case of Harshad Govardhan Sondagar (supra) cannot be made applicable in the facts of the case. He submitted that the provision of Section 17 of the SARFAESI Act has been amended on 01.09.20 and the judgment of the Hon’ble Apex Court with the aforesaid observations is dated 03.04.2014. He, therefore, submitted that the Legislature has therefore provided by proper amendment right to such third party and, therefore, this judgment would not apply in view of the amendment in the Act. 18. Learned advocate, Shri Rao has also referred the judgment of the Hon’ble Apex Court in case of Ramesh Dutt & Others Vs. State of Punjab & Ors., reported in (2009) 15 SCC 429 . 19. 18. Learned advocate, Shri Rao has also referred the judgment of the Hon’ble Apex Court in case of Ramesh Dutt & Others Vs. State of Punjab & Ors., reported in (2009) 15 SCC 429 . 19. In rejoinder, learned Senior Counsel, Shri Shalin Mehta has referred to the provisions of the SARFAESI Act, more particularly, Section 17 of the SARFAESI Act and submitted that Section 17 provides that any person aggrieved by measures referred to Section 13(4) of the SARFAESI Act may have remedy. He submitted that it would imply that such notice or steps would be valid only if it is in compliance with Section 13(4) of the SARFAESI Act. Learned Senior Counsel, Shri Shalin Mehta submitted that in fact, that stage has not reached and he again strenuously submitted that in the instant case, there are sale deeds in favour of the concerned petitioners, which are prior to the date of the mortgage. He submitted that the date of mortgage has to be taken from the date of registration i.e. 16.08.2014. Learned Senior Counsel, Shri Shalin Mehta strenuously submitted that there is no explanation coming forth as to why the mortgage was not registered till 2014. He submitted that the transactions have taken place before registration, which would put the buyers to the notice. Learned Senior Counsel, Shri Shalin Mehta strenuously submitted that even though the search was taken and after the title clearance certificate was obtained, the parties have entered into the transaction of purchase of the flats/unit and, therefore, they are bonafide purchasers for a value. Learned Senior Counsel, Shri Shalin Mehta also submitted that when the submissions are made in the name of the public money or duping the money of the borrower, it also require to be reflected about the conduct of the parties including the bank itself. Therefore, learned Senior Counsel, Shri Shalin Mehta again referred to the provision of the SARFAESI Act and also Section 17(4)(a) of the SARFAESI Act and submitted that procedure is prescribed and Clause (b) of Section 17(4A)(i) has a reference to the Transfer of Property Act. He, therefore, submitted that this provision has to be read with Section 13 of the SARFAESI Act. He, therefore, submitted that this provision has to be read with Section 13 of the SARFAESI Act. Learned Senior Counsel, Shri Shalin Mehta submitted that Sections 13(2) and 13(3) of the SARFAESI Act obliges the secured creditor like the bank to give notice including the persons like the petitioners, who are in possession. He strenuously submitted that as no notice has been given, it would amount to violation of natural justice as it causes prejudice to the rights of the petitioners and, therefore only on that count, the petitions deserve to be allowed. Learned Senior Counsel, Shri Shalin Mehta submitted that alternate remedy is not bar to exercise the discretionary jurisdiction under Article 226 of the Constitution of India in certain circumstances, which are considered as exception to the general rules as discussed in the judgment of Whirlpool Corporation (supra). He, therefore, strenuously submitted that the petitioners, who are bonafide purchasers for a value, have right and cannot be evicted without even notice or even opportunity and they would have otherwise saddled with liability for payment of the fraud of others though they have purchased for a consideration with the payment. Learned Senior Counsel, Shri Shalin Mehta again submitted that in many cases, it is prior to mortgage or registration of the mortgage and the amount has been paid by cheque to the respondent no.2, which should have been in the escrow account, which is required to be maintained. He, therefore, submitted that if the escrow account is not verified and if the amount is not deposited by the respondent no.2, the petitioners are not at fault and, therefore, once the possession is with the petitioners, it is required to be protected. Learned Senior Counsel, Shri Shalin Mehta referred to Sections 13(4A) and 13(2) of the SARFAESI Act and submitted that as stated above, the notice is not issued to the petitioners, who are the occupants and the notices were issued only to the principal borrowers i.e. the respondent no.2. Learned Senior Counsel, Shri Shalin Mehta therefore submitted that before Section 13(4) of the SARFAESI Act could be resorted, there has to be compliance with Section 13(2) of the SARFAESI Act. He submitted that if that stage, notice is not issued and there is no compliance with the statutory provision, it would be putting cart before the horse. 20. Learned Senior Counsel, Shri Shalin Mehta therefore submitted that before Section 13(4) of the SARFAESI Act could be resorted, there has to be compliance with Section 13(2) of the SARFAESI Act. He submitted that if that stage, notice is not issued and there is no compliance with the statutory provision, it would be putting cart before the horse. 20. Learned Senior Counsel, Shri Shalin Mehta also submitted that the alternate remedy as suggested may not be effective and/or sufficient. Learned Senior Counsel, Shri Shalin Mehta submitted that Section 17(4A) of the SARFAESI Act does not apply. He submitted that it has reference to different situation and whether it is company or limited liability or partnership and, therefore, has no application. In any case, it has been brought into force w.e.f. 01.01.2016 and, therefore, it has no relevance. 21. Learned Senior Counsel, Shri Shalin Mehta submitted that the persons like petitioners are in possession and the amendment is said to have been brought into force subsequently and, therefore, the observations made by the Hon’ble Apex Court in case of Harshad Govardhan Sondagar (supra) would apply. He submitted that the submission that it applies to only lease and not sale, has to be read in context and background of the facts. 22. Learned Senior Counsel, Shri Shalin Mehta submitted that another facet of submission about the alternate remedy suggesting that disputed question of facts are involved and, therefore, the petitioners may be relegated before the Debt Recovery Tribunal, is misconceived. He submitted that merely because it is stated that it involves disputed questions of fact does not become disputed facts without going into record. He emphasized that the facts are clear and it is sufficient to satisfy the Court for invocation of jurisdiction under Article 226 of the Constitution of India as the statutory powers of SARFAESI Act have been exercised without following procedure and without issuing notice coupled with the facts that the mortgage was not registered, which would put anybody to the notice and, therefore, now the submissions that the mortgaged created earlier would relate back to earlier date of mortgage will cause prejudice to the persons like petitioners, are therefore not justified. Learned Senior Counsel, Shri Shalin Mehta strenuously emphasized about the conduct of the respondents, particularly, the respondent no.1 and submitted that atleast the respondent no.1 as a public institution was obliged to verify and remain alert when there is escrow account that the amount is deposited in that account or not. He submitted that if the amount has been shifted, it cannot be without notice of the bank and there is connivance with the respondent no.2 and the officers of the bank and, therefore, the persons like petitioners may not be put to any kind of liability and/or prejudice. 23. In view of these rival submissions and having regard to the background of the facts, it is required to be considered whether the present petition deserves consideration. 24. As could be seen from the facts recorded and the submissions recorded hereinabove, the respondent no.2 is the borrower and the respondent no.1-bank is said to have advanced the loan. Thereafter, the construction has been made for the units or the flats by the respondent no.2 known as “Shukan” and the petitioners, who are the members, have purchased the flats/units. It is required to be stated that the petitioners have also taken loan against the individual flat or unit allotted to them and title clearance certificate has also been obtained for the purpose of getting loan from respective other bank or Institution. The bone of contention which has been raised by the petitioners is that the petitioners are bonafide purchasers for a value without notice of any such transaction of loan and the mortgage between the respondent no.2 (builder) and the respondent no.1-bank. Therefore the notice issued and further steps taken in purported exercise of power under the SARFAESI Act are sought to be challenged in the present group of petitions contending that it is in violation of rules of natural justice as well as the statutory provision of the SARFAESI Act and also causing hardship to the petitioners, who are bonafide purchasers. On the other hand, the respondent no.1-bank has tried to resort to the provision of the SARFAESI Act with much emphasizing on the statutory provision empowering the respondent no.1-bank to recover the dues or the loan by proceeding against the property or the units, which are now in possession of the petitioners, who are allottees. On the other hand, the respondent no.1-bank has tried to resort to the provision of the SARFAESI Act with much emphasizing on the statutory provision empowering the respondent no.1-bank to recover the dues or the loan by proceeding against the property or the units, which are now in possession of the petitioners, who are allottees. Thus the petitioners on one hand have claimed about the collusion between the respondent no.2 and the respondent no.1-bank with specific averments and allegations that the respondent no.1-bank has obliged the respondent no.2 and the respondent no.1-bank has not taken necessary steps as required like compliance with the Circular of the Reserve Bank of India that the respondent no.2 (builder) may not sale, transfer or create any third party right without the knowledge of the respondent no.1-bank. It is further alleged that the amount which has been given to the respondent no.2 for the purchase of the flat/unit were required to be deposited in the escrow account maintained by the respondent no.1-bank qua the respondent no.2. Therefore, it is not only negligence but connivance of the officers of the respondent no.1-bank that such amount is to be siphoned off by the respondent no.2. 25. On the other hand, learned advocate for the respondent no.1-bank has emphasized about the right of the respondent no.1-bank to proceed against the petitioners under the provision of the SARFAESI Act for the recovery of the outstanding amount. It is also argued that the property over which such flat/unit have been constructed, has been mortgaged with the respondent no.1-bank by the respondent no.2 and, therefore, any right, title, interest or the charge created in favour of any third party will be subject to the provision of the SARFAESI Act and the persons like the petitioners having purchased the flat/unit despite such mortgage in favour of the respondent no.1-bank cannot make any claim in view of the mortgage of the property with the respondent no.1-bank. It is also contended that the respondent no.1-bank is entitled to proceed against the mortgaged property for recovery of the outstanding loan amount and the persons like the petitioners having purchased with the knowledge after the public notice cannot claim any right. It is also contended that the respondent no.1-bank is entitled to proceed against the mortgaged property for recovery of the outstanding loan amount and the persons like the petitioners having purchased with the knowledge after the public notice cannot claim any right. In fact, it has been contended that at the instance of the respondent no.2 (builder), the petitioners have in collusion filed such petition to cause prejudice to the rights of the respondent no.1-bank and thereby it affects the public money and public interest. It is also contended that the High Court in exercise of discretionary jurisdiction under Articles 226 and 227 of the Constitution of India may not entertained the petition and at the most, relegated the petitioners to the Debt Recovery Tribunal, where such issues can be considered on examination of material and evidence 26. Thus the submissions have been made with much emphasis opposing two counts that the High Court under Article 226 of the Constitution of India may not exercise the discretionary jurisdiction in view of the alternative remedy before the Debt Recovery Tribunal and second, the disputed questions of facts are involved, which are required to be examined before the Debt Recovery Tribunal. 27. Learned advocates have as recorded hereinabove made the submissions with much details referring to the facts, background and also the provision of the SARFAESI Act and also the judgment of the Hon’ble Apex Court. Learned Senior Counsel, Shri Shalin Mehta has emphasized referring to the observations made in a judgment in case of Harshad Govardhan Sondagar (supra) and submitted that specific observations have been made contemplating such situation, where the innocent persons like the petitioners, who are bonafide purchasers, may not have to suffer. 28. Similarly, learned Senior Counsel, Shri Shalin Mehta referred to the judgment of the High Court of Gujarat in case of IDBI Bank Ltd. Vs. Hytaisun Magnetics Ltd. & Ors., reported in 2011 (2) GLR 1438 . Learned Senior Counsel, Shri Mehta has also pointedly referred to the judgment of the Hon’ble Apex Court in case of Whirlpool Corporation (supra) submitted that it craves out the exception for exercise of discretionary jurisdiction under Article 226 of the Constitution of India when it is a case of; (1) violation of principles of natural justice; (2) violation of fundamental rights; and (3) when the authority has acted without jurisdiction. Learned Senior Counsel, Shri Shalin Mehta has therefore strenuously submitted that the petitioners may not be sent pillar to post without any fault merely because they have flat/unit after compliance with the necessary procedure including the title clearance certificate having obtained loan from other banks or the institution. If the submissions made by the learned advocate for the bank are to be accepted, it would mean that they would saddle with the additional liability for not only units but also liability of the loan of the builder and the provision of the SARFAESI Act have to be considered with reference to Article 300 of the Constitution of India. Learned Senior Counsel, Shri Shalin Mehta has pointedly referred to and emphasized as to how they are bonafide purchasers for a value and has pointedly referred to the relevant aspects that though the mortgage is said to have been made by the respondent no.2 with regard to the land in question with the respondent no.1 for the loan in question in the year 2011, same has not been registered till 2014 and the petitioners, who are the members of the society have obtained title clearance certificate with necessary verification made with the office of the Sub-Registrar and as there has not been any mortgage or entry regarding the mortgage, they have also obtained loan from other banks or financial institutions. Therefore, he strenuously emphasized that the petitioners are bonafide purchasers and there is no question of any collusion. At the same time, much emphasis has been given on the Circular of the Reserve Bank of India dated 27.08.2009 and submitted that it makes it obligatory for the builder to give public notice in the newspaper, which has not been done. Therefore the moot question is that the submissions which have been made by the learned Senior Counsel, Shri Mehta claiming the petitioners being the bonafide purchasers and the submission made by learned advocate, Shri Rao with much emphasis on the provision of the SARFAESI Act and the mortgage of the property in question with the bank, have to be examined closely. The submission made by learned advocate, Shri Rao for the respondent no.1-bank referring the statutory provision of the SARFAESI Act and also the judgment of the Hon’ble Apex Court in case of Dilboo (Smt.) (Dead) by Lrs. & Anr. The submission made by learned advocate, Shri Rao for the respondent no.1-bank referring the statutory provision of the SARFAESI Act and also the judgment of the Hon’ble Apex Court in case of Dilboo (Smt.) (Dead) by Lrs. & Anr. (supra), reported in (2000) 7 SCC 702 may sound appealing in the first blush but on little scrutiny, it is evident that such provisions have to be read in context and background of the facts as it cannot be read in isolation. It is well settled that the text of the Act has to be read with the context of the facts and same statutory provision empowering the authority or enabling the authority or person may have different complexion and colour depending upon the facts. Therefore it is very necessary to scrutinize the background of the facts and the submissions made by learned advocate, Shri Rao with much emphasis on the statutory provision of the SARFAESI Act. The submissions have been made referring to the provision of the SARFAESI Act on behalf of the respondent no.1-bank. It is also necessary to look closely as to how the respondent no.1-bank which is a Nationalize Bank dealing with the public money, has permitted the loan account of the respondent no.2 and whether it has taken necessary precaution as it would be expected of a public body like Nationalize Bank would behave. It is not in dispute that the mortgage deed, which is said to have been executed between the respondent nos.1 and 2 with regard to the property/land in question in the year 2011 has not been registered till 2014. The submission made by learned advocate, Shri Rao that if the entry of the mortgage is not made in the revenue record, the bank is not responsible, reflect a casual approach inasmuch the prudent man or the Institution like the bank having legal department would not ignore or overlook of the registration of the entry for the mortgage, which has been made in favour of the bank. Such a mortgage is created to protect the right and interest of the bank in such property, which is mortgaged in favour of the bank. Such a mortgage is created to protect the right and interest of the bank in such property, which is mortgaged in favour of the bank. In other words, the purpose of creating mortgage in favour of the Institution like the bank is to protect their loan or advances, which is a public money and, therefore, the Institution like the respondent no.1-bank cannot afford to be indifferent and it is only reflecting the casual approach. It is not only this fact but as stated, the title clearance certificates have been obtained by the petitioners in the year 2014 and at that time, as there was no entry with the Registrar, they have proceeded further and they have obtained loan from other financial institution including other banks. Had there been an entry, it would have stopped or it would have been clarified with regard to the charge of the respondent no.1-bank qua the property in question. Therefore it is this very aspect which has been taken so casually and on that top of that, it was argued that the bank is not aware as to why the entry is not made and the bank cannot be blamed is too difficult to digest. 29. Further the Reserve Bank of India has published Circular dated 27.08.2009 making it obligatory for the builder to publish details of mortgage under the brochure or in the newspaper. Admittedly it has not been done. Assuming that the respondent no.2 may not be interested but the respondent no.1 which is a Nationalize Bank dealing with the public money is oblige to follow the Circular issued by the Reserve Bank of India. In fact, such circular has been issued by the Reserve Bank of India only to safeguard the people as well as the bank that if it is published in the brochure or in the newspaper by the builder, he cannot escape from the liability. The interest of the bank as well as interest of the third party, who are dealing with the builder like the respondent no.2, would have been protected and it would prevent such kind of issue, by which, the respondent no.2 or the builder can escape or avoid liability at the cost of the public money. This could be the kind of attitude, which could be a one of the cause for huge NPA by the Nationalize Bank. This could be the kind of attitude, which could be a one of the cause for huge NPA by the Nationalize Bank. Not only that, one further aspect which is required to be noted is that when such advances are given with the mortgage with an undertaking of the builder like the respondent no.2 that it will not sale or dispose of the property or create any right, title, interest in favour of the third party without the knowledge and consent of the bank or the mortgagor, there is no reason or justification as to why the compliances have not been made. Further when such undertaking is taken, it requires one kind of obligation for the Nationalize Bank that it may secure the advances or the loan by suitable measures. The officers of the bank, who are required to visit such site, could have known about any such development by the builder for sale or creation of third party rights in favour of the persons like the petitioners if they were vigilant. It is expected of public financial institution or the Nationalize Bank to be vigilant for the purpose of securing such money or the loan which they advances dealing with public money. Therefore though on paper, it is said that escrow account is opened as stated and reflected with the details that the amount which has been deposited or paid towards the consideration by the petitioners, who are the purchasers of the units or the flats ought to have gone into escrow account of the respondent no.2 (builder) by the respondent no.1-bank. There is no explanation on this aspect as to how the builders could have not deposited the amount of consideration received by him towards the sale consideration of the respective flat and/or unit deposited in another account instead of escrow account. In many cases, the persons like petitioners or the buyers of the respective flat or unit have taken loan or advance from the bank or financial institution and then in that case, they would have given cheque or amount, which would have been deposited by the respondent no.2 in the escrow account. The arguments that how the builder has accepted directly and deposited in another account, the respondent no.1-bank may not be aware, is rather over simplification. The arguments that how the builder has accepted directly and deposited in another account, the respondent no.1-bank may not be aware, is rather over simplification. On one hand, when the respondent no.1-bank is claiming charge over the property, there is an escrow account and on the other hand, it is not believable that the respondent no.2 could have dealt with the flats/units in the manner suggested by the bank and ignorance played by the respondent no.1-bank on such transactions that how the amount has been deposited or siphoned away by the respondent no.2 (builder) in another bank is not known, is difficult to digest. It may not be out of place of mention about the fact that after huge amount of the respondent no.1-bank has been duped initially, complaints have not been filed by the banks to safeguard their interest or the amount of advance. It is the persons like petitioners, who have been duped and harassed, have lodged the complaints. The cumulative effect of all aforesaid circumstances will lead to prima facie inference about the gross negligence of the respondent no.1-bank to say the least. This Court refrain from making further observation with regard to the connivance between the officers of the respondent no.1-bank and the respondent no.2 in light of the fact that criminal courts may reach conclusion independently. However, the negligence by the respondent no.1-bank and/or its officers having failed to safeguard of the respondent no.2 cannot be overlooked. 30. It is in this background, the submissions made by learned advocate, Shri Rao with much emphasizing on the provision of the SARFAESI Act require to be considered. Therefore though the statutory provisions are made empowering the financial institutions like the bank to have a recourse under the statutory provision for recovery of the outstanding loan, it is required to be considered whether such statutory powers vested with the authority like the respondent no.1-bank could be permitted to be abused. The exercise of power or the recourse under the statutory provision is one thing and having allowed the irregularities and/or having remained indifferent for the loan or the advances suggesting one kind of favour to the respondent no.2, would not entitle the respondent no.1-bank to resort to SARFAESI Act qua third party without issuance of notice. The exercise of power or the recourse under the statutory provision is one thing and having allowed the irregularities and/or having remained indifferent for the loan or the advances suggesting one kind of favour to the respondent no.2, would not entitle the respondent no.1-bank to resort to SARFAESI Act qua third party without issuance of notice. It is in this context, it is well settled that whenever the text of the statute is read, it has to be read in context and background of the facts. If the letter of the statute is taken without reference to the facts and reality, it may be counter productive and hurdle in achieving purpose, for which, the Legislature has made the law. If the submissions made by learned advocate, Shri Rao for the respondent no.1-bank emphasizing on the aspect of public money and public interest are accepted at the face value, it would amount to endorsing their own negligence or lapses at the cost of innocent persons like the petitioners. That can never be the intention of the Legislature and the statutory provisions have to be read and made applicable vis-a-vis the background of the facts and other issues raising not only the question marked on the conduct of the bank and also justification for exercise of the statutory provisions. In a given set of facts like in the present case, the respondent no.1-bank would be estopped from claiming any right and/or any such submissions on the ground of public interest having failed to discharge the statutory obligation and reasonable care to protect the amount of loan or advance. As discussed above, apart from being vigilant, the respondent no.1-bank has shown indifferent attitude and negligence for the advance made by it resulting in such litigation, for which, even if the respondent no.2 is the defaulter or manipulator, the respondent no.1-bank cannot be allowed to escape from its own liability. It is paramount duty of the respondent no.1-bank like Nationalize Bank to safeguard and protect the interest of public money with which they are dealing and they cannot afford to remain indifferent to the circular of Reserve Bank of India, common sense and also the procedural safeguard, which they are required to follow to protect their own money. It is paramount duty of the respondent no.1-bank like Nationalize Bank to safeguard and protect the interest of public money with which they are dealing and they cannot afford to remain indifferent to the circular of Reserve Bank of India, common sense and also the procedural safeguard, which they are required to follow to protect their own money. In fact, in some of the cases, no objection has been given, which would imply that even No Objection is required from the bank and, therefore, there could have been mechanism evolved by the respondent no.1-bank or it is required to be evolved to protect the interest of such Nationalize Bank that no allotment or transaction for the agreement to sale or any transaction in the form of creating rights of third party could take place. For that purpose, suitable framework or mechanism could have been evolved, by which, any person desires to buy flat/unit would be first required to take No Objection Certificate from the bank like the respondent no.1, who has advanced loan to the builder. The bank could have evolved and kept in place mechanism, by which, the builder cannot deal with third party by issuance of any certificate like share certificate, allotment letter etc. As the matter is pending before the appropriate criminal court, it may not be desirable to elaborate as it may be examined with reference to the material. 31. Thus in such case, where on one hand, the petitioners are claiming as bonafide purchasers for a value and on the other hand, the respondent no.1-bank is claiming rights under the provision of the special statute like SARFAESI Act on the basis of the mortgage, the balance is required to be struck between two competing claims. Therefore having regard to the provision of the SARFAESI Act, which is enacted by the Legislature with an aim to protect the interest of public financial institution like the bank, it has to be considered with balance with the principle of equality and fairness. Therefore having regard to the provision of the SARFAESI Act, which is enacted by the Legislature with an aim to protect the interest of public financial institution like the bank, it has to be considered with balance with the principle of equality and fairness. As discussed above, if the provision of the SARFAESI Act are pressed into service by the respondent no.1-bank, it is also obligatory for the bank to have a strict adherence to necessary procedure and cannot afford to remain indifferent, particularly when, the principle of estopppel and legitimate expectation are staring in the face that the financial institution like the bank claiming exercise of rights under the special statute like the SARFAESI Act are also under the obligation to adhere to the norms and the procedure to protect their own interest. The doctrine of estoppel and legitimate expectation would require public financial institution or the bank to have certain amount of clarity as well as procedural safeguard by evolving necessary regulatory frame work or mechanism that third party rights are not also put to such situation. A useful reference can be made to the judgment of the Hon’ble Apex Court in case of Southern Petrochemical Industries Co. Ltd. Vs. Electricity Inspector & ETIO and ors., reported in (2007) 5 SCC 447 . Referring to the Administrative Law by Wade, (6th Edition), it could be stated that “there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable.” 32. One further aspect which is pressed into service is regarding the right and interest in the property with reference to Article 300 of the Constitution of India will also have to be considered when much emphasis is made on the provision of the SARFAESI Act. The Courts are required to strike balance between the individual rights of the persons like the petitioners and the right of public financial institution like the bank claiming the authority or power under the SARFAESI Act. Therefore when such issues are raised, it clearly reveals that it is the negligence or lack of mechanism and necessary regulatory framework causes such issue and problem coupled with soft-pedaling by the officer of the public financial institution or the officers of such institution like the respondent no.1-bank. 33. Therefore when such issues are raised, it clearly reveals that it is the negligence or lack of mechanism and necessary regulatory framework causes such issue and problem coupled with soft-pedaling by the officer of the public financial institution or the officers of such institution like the respondent no.1-bank. 33. It is in this background, submissions made by learned advocate, Shri Rao that the petition may not be entertained as it is involved the disputed questions of fact and there is alternate remedy, cannot be accepted at the face value. However, it is well settled that alternate remedy is not a bar to exercise the discretionary jurisdiction under Article 226 of the Constitution of India as emphasized by learned Senior Counsel, Shri Mehta referring to the judgment of the Hon’ble Apex Court in case of Whirlpool Corporation (supra). It is an exception made. It is well settled that the discretionary jurisdiction under Article 226 of the Constitution of India may not be a bar but has to be exercised judiciously. In other words, it is not a lack of jurisdiction but rather a propriety for exercise of such jurisdiction. A useful reference can be made to the judgment of the Hon’ble Apex Court in case of Commissioner of Income Tax & Ors. Vs. Chhabil Dass Agarwal, reported in (2014) 1 SCC 603 , wherein referring to this aspect of exception, the Hon’ble Apex Court has made observation and emphasized on the efficacy of the alternate remedy that it must be effective and not a mere formality. It has been observed, “Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy, i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” 34. The submissions, which have been made with much emphasis on the observation made by the Hon’ble Apex Court in case of Harshad Govardhan Sondagar (supra) require a closer scrutiny inasmuch as stated, the persons like petitioners who are third party, may have remedy before the Debt Recovery Tribunal in view of the amendment to Section 17 of the SARFAESI Act, which provides “any aggrieved person”. At the same time, much emphasis given by learned Senior Counsel, Shri Mehta as well as learned Senior Counsel, Shri Nanavati for the petitioners with regard to the rights of the petitioners as a bonafide purchasers for a value without notice and also denial of any opportunity result in violation of natural justice, is required to be considered. The submissions which have been made by learned advocate, Shri Rao with reference to the Transfer of Property Act, particularly, Sections 37 and 55 have to be read in context and background of the facts as well as the statutory provision of the SARFAESI Act. In fact, when the Hon’ble Apex Court has made observations in a judgment in case of Harshad Govardhan Sondagar (supra), it has clearly made reference to earlier judgment of the Hon’ble Apex Court in case of Transcore Vs. Union of India & Anr., reported in (2008) 1 SCC 125 making the observation about the reservation for exercise of the right under the SARFAESI Act as well as the right of other third party in possession. The Hon’ble Apex Court considering interplay of both statute i.e. the Transfer of Property Act and SARFAESI Act and also taking note of the provision of the SARFAESI Act, it states that notwithstanding contained anything in other law, any security interest created in favour of the secured creditor like the bank can be enforced. As clearly stated, it does not override the statutory provision or the provision of the Transfer of Property Act relating to the right of lessee or the rights created before such notice under Section 13(2) of the SARFAESI Act. As clearly stated, it does not override the statutory provision or the provision of the Transfer of Property Act relating to the right of lessee or the rights created before such notice under Section 13(2) of the SARFAESI Act. It would imply that therefore such right which is claimed by the petitioners either as purchasers or on the basis of the registered agreement to sale, would require closer examination with the provision of Section 55 of the Transfer of Property Act as well as Section 65(A) of the Transfer of Property Act vis-a-vis the provision of the SARFAESI Act. Thus when it is stated that the petitioners are in occupation and possession as bonafide purchasers without any notice under Section 13 of the SARFAESI Act, it may have to be examined with reference to interplay of two legislature. Again when action is sought to be taken by the secured creditor in purported exercise of power under Section 13 of the SARFAESI Act, detailed procedure is provided in the Security Interest (Enforcement), Rules, 2002, where the secured creditor for the respondent no.1-bank is required to make declaration before exercise and enforcement of such right or the security interest and it may have to clearly state before the authority with the affidavit of the secured creditor. 35. Thus having regard to the provision of Section 14 of the SARFAESI Act, which has reference to the possession of the secured assets, has to be considered with Rule 9 of the Security Interest (Enforcement) Rules, 2002. It lays down the complete procedure. Sections 14(a) and 14(b) provides for the manner in which the possession could be taken with the assistance of the Metropolitan Magistrate or the District Magistrate. However proviso has been added w.e.f. 15.01.2013, which reads as under, “Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorosed officer or the secured creditor, declaring that” 36. Thus this proviso imposes an obligation upon the secured creditor like the bank to disclose by affidavit relevant details as stated or enumerated in Section 14 of the SARFAESI Act. Rule 9 of the Security Interest (Enforcement) Rules, 2002 referred to the procedure before the public notice of sale is given. Thus this proviso imposes an obligation upon the secured creditor like the bank to disclose by affidavit relevant details as stated or enumerated in Section 14 of the SARFAESI Act. Rule 9 of the Security Interest (Enforcement) Rules, 2002 referred to the procedure before the public notice of sale is given. In the instant case as recorded, an application does not seem to have been filed by the respondent no.1-bank with details and affidavit as provided and referred to proviso to Section 14 of the SARFAESI Act and same aspect has been considered by the Hon’ble Apex Court in a judgment in case of Harshad Govardhan Sondagar (supra), wherein the Hon’ble Apex Court considering Section 13 of the SARFAESI Act and the enforcement of the security interest has referred to issuance of notice to the borrower and the consideration of his objection. It has also been provided in Section 13(4) of the SARFAESI Act that when the borrower fails to discharge his liability as provided in subsection (2), the secured creditor like the bank may have a recourse for the recovery of the secured debt as referred to in Section 13(4) of the Act. It has also been observed with reference to the provision of Sections 13 and 14 that, “There is, however, no mention in subsection (4) of Section 13 of the SARFAESI Act that a lease made by the borrower in favour of a lessee will stand determined on the secured creditor deciding to take any of the measures mentioned in Section 13 of the said Act. Subsection (13) of Section 13 of the SARFAESI Act, however, provides that after receipt of notice referred to in subsection (2) of Section 13 of the SARFAESI Act, no borrower shall lease any of his secured assets referred to in the notice, without the prior written consent of the secured creditor. ......... Hence, subsection (13) of Section 13 of the SARFAESI Act will override the provisions of Section 65A of the Transfer of Property Act by virtue of Section 35 of the SARFAESI Act, and a lease of a secured asset made by the borrower after he receives the notice under subsection (2) of Section 13 from the secured creditor intending to enforce that secured asset will not be a valid lease.” 37. Though this issue has been addressed with reference to the lease, but same analogy would be applicable qua the fact of the persons like the petitioners, who are not lessee or have no any right pursuant to any lease but they have perhaps better and higher right and in any case, even if it is an agreement to sale with possession, certainly the rights cannot be affected or prejudice without even giving a bare minimum opportunity of hearing in compliance with the rules of natural justice. Therefore, even if it is not a lease as contended by learned advocate, Shri Rao, fact remains that the rights are created in favour of the petitioners, pursuant to which, they are in possession of the respective flats/units, which need to be protected. 38. Therefore the mortgage qua land over which the construction has been made and the claim made by the petitioner that they have purchased bonafide could be considered on the basis of the material that could be produced before the Debt Recovery Tribunal with every detail with regard to the escrow account, which the bank was obliged to maintain and the respondent no.2 (builder) was obliged to deposit the consideration and also the Circular of the Reserve Bank of India as stated above, which the bank was obliged to follow. Therefore, when the submissions have been made on one hand based on the mortgage in favour of the bank and learned Senior Counsel, Shri Nanavati has made emphasis on the NOC given by the respondent no.1-bank itself, it would stare in the face raising an issue of estoppel and legitimate expectation. Further as rightly emphasized by learned Senior Counsel, Shri Mehta with reference to the Circular of the Reserve Bank of India and the escrow account, the details could be verified on the basis of the material before the Debt Recovery Tribunal, which would have to be explained by the bank. Therefore, the impugned notice cannot be sustained and deserves to be quashed and set aside. However, the matter is remanded back to the Debt Recovery Tribunal for examination of material with every detail afresh with reference to the provision of the SARFAESI Act as well as other material on the basis of which, the rights are claimed by the purchasers like petitioners as a bonafide purchasers. 39. However, the matter is remanded back to the Debt Recovery Tribunal for examination of material with every detail afresh with reference to the provision of the SARFAESI Act as well as other material on the basis of which, the rights are claimed by the purchasers like petitioners as a bonafide purchasers. 39. Therefore having regard to the aforesaid background, as the respondent no.1-bank has failed to protect the public interest and as the public money is involved, it would be in the fitness of things that the matter is remanded back to the Debt Recovery Tribunal to adjudicate such issues of legality and validity of the claim based on mortgage and security interest created in favour of the bank and claim made by the petitioners as bonafide purchasers for a value without notice. 40. Therefore, the impugned notice dated 12.07.2014 of Special Civil Application No.11944 of 2014 and Special Civil Application No.18740 of 2017 is hereby quashed and set aside. Similarly, the impugned order passed by the Collector & District Magistrate dated 07.10.2015 of Special Civil Application Nos.17807, 18825, 19443, 19481, 20630, 20631 to 20672, 18365 & 18366 of 2015 is hereby quashed and set aside. However, it will be open for the respondent no.1-bank to proceed in accordance with law after complying with the provision of the SARFAESI Act. Therefore, the petitioners are directed to make appropriate application before the Debt Recovery Tribunal, Ahmedabad. On submission of such application, the Debt Recovery Tribunal, Ahmedabad is directed to issue notice to all respective parties for fixing further hearing within a period of four weeks and shall decide the matter afresh as expeditiously as possible preferably within a period of six months without being influenced by any observation made in this order. It is, however, made it clear that till the order is passed by the Debt Recovery Tribunal, Ahmedabad afresh, no further steps shall be taken by the respondent no.1-bank for enforcement of the security interest or to take possession of the units/flats of the petitioners and the possession of the petitioners shall remain protected till then. 41. With the above observations and directions, the present petitions stand allowed partly to the aforesaid extent. Rule is made absolute to the aforesaid extent.