JUDGMENT R. Devdas J. (Oral) - The petitioners herein are primarily aggrieved by the impugned order dated 03.02.2020 at Annexure G passed in I.A.No.252/2020 in S.A.No.29/2020 by the Debts Recovery Tribunal-1, Karnataka at Bengaluru. 2. Learned counsel for the petitioners Sri. D.R. Ravishankar appearing for the petitioners draws the attention of this court to the Memorandum of Mortgage by deposit of title deeds at Annexure B. Learned counsel submits that on a plain reading of the document, it is clear that the 1st respondent has purportedly given financial assistance to the extent of Rs.2,40,00,000/- to the petitioners by taking as security the title deeds pertaining to Schedule B property. The learned counsel submits that the petitioners had approached the 1st respondent to take over the existing loan from the hands of the 3rd respondent LIC Housing Finance Limited [LIC HFL]. However, in the guise of taking over the loan, the 1st respondent has got the document at Annexure B executed without even taking over the loan and on the other hand, have made it look as if the petitioners are standing as guarantors for the loan obtained by the 2nd respondent from the 1st respondent. 3. The learned counsel submits that on a close reading of the Memorandum of Mortgage at Annexure B, it is clear that there is no reason assigned as to why the original title deeds have not been taken for execution of the mortgage. In this regard, reliance is placed on R. Janakiraman v. State, represented by the Inspector of Police, CBI, SPE, Madras reported in (2006) 1 SCC 697 wherein it was held that equitable mortgage is created by depositing the original title deeds. It was found in that case that the original title deeds were not deposited. On the other hand, two documents such as the certificate issued by another House Building Co-operative Society certifying that the appellant is the owner of the property in question and on the basis of two receipts issued by the Electricity Board showing the name of the appellant, the mortgage by deposit of title deeds were created. The Honble Supreme Court has held that these facts would clearly show that equitable mortgage was also a 'make believe and not real.' 4. The Honble Supreme Court has held that these facts would clearly show that equitable mortgage was also a 'make believe and not real.' 4. The learned counsel for the petitioners further draws the attention of this court to the impugned order to submit that the petitioners had approached the Debts Recovery Tribunal seeking stay of the impugned possession notice dated 13.01.2020 issued by the 1st respondent bank to recover a total sum of Rs.10,23,90,487/- being the outstanding dues together with further interest and costs. At Para 3, it is pointed out that the Debts Recovery Tribunal was prima facie convinced with the submissions of the petitioners but however, the Tribunal held that the recovery of public money being of paramount importance, it is necessary to put the petitioners on terms so as to ensure balance of convenience to both the parties, pending disposal of the appeal. This condition that is imposed by the Debts Recovery Tribunal is the bone of contention before this Court. 5. Learned counsel for the 1st respondent- Bank would submit that the imposition of condition could be challenged before the Appellate Authority. In this regard, the learned counsel also placed reliance on a decision of the Apex Court in the case of Authorized Officer, State Bank of Travancore and Others v. Mathew K.C, reported in AIR 2018 SC 676 and a decision of a Full Bench of this Court in the case of Deepak Apparels Pvt. Ltd and others v. City Union Bank Ltd and others, reported in AIR 2016 Kant 101 . The learned counsel submits that the Honble Supreme Court has time and again held that when a statutory recourse is open, the parties should not be permitted to invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 6. The learned counsel submits that the Honble Supreme Court has time and again held that when a statutory recourse is open, the parties should not be permitted to invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 6. Having heard the learned counsels, this Court is of the opinion that the contention of the learned counsel for the petitioners that when a challenge is raised with regard to an action of the bank and in cases where it is found that the action initiated by the bank was beyond the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act for short), then the parties need not approach the Debts Recovery Tribunal and the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India could necessarily be invoked, cannot be accepted. It is the contention of the petitioners that the possession notice issued by the 1st respondent-Bank is primarily in violation of the provisions of SARFAESI Act, in that the possession notice could not have been issued by the bank since there is no agreement as such entered into by the petitioners with the 1st respondent-Bank. 7. In this regard, the learned counsel for the petitioners has drawn the attention of this Court to Section 2(1) (zb) of the SARFAESI Act wherein the definition of 'Security Agreement' is given. The definition of Security Agreement, as provided in the Act is that it would mean an agreement, instrument or any other document or arrangement under which security interest is created in favour of the secured creditor including the creation of mortgage by deposit of title deeds with the secured creditor. 8. To buttress his argument, learned counsel for the petitioners further pointed out from Section 17 of the Act that any person including the borrower, if aggrieved by any of the measures referred to in Section 13(4) taken by the secured creditor or his Authorized Officer under this Chapter, may make an application along with such fee, as may be prescribed by the Debts Recovery Tribunal. 9. 9. Further, the learned counsel has pointed out to Section 13(2) which would provide that 'where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof,.' (emphasis supplied) 10. Learned counsel has emphasized the word 'Security Agreement' and would vehemently submit that from the mortgage of deposit of title deeds at Annexure B, it is clear that the original title deeds were not taken in deposit while it is an admitted fact that the original title deeds are in deposit with the 3rd respondent and nothing about the loan secured by the petitioners on the strength of the title deeds that are deposited already before the 3rd respondent has been stated in the Memorandum of Mortgage at Annexure B. 11. Further, while pointing out to Section 13(4), the learned counsel for the petitioners would submit that a financial institution could only proceed to take measures as provided in Section 13(4) and it is only these actions of the financial institutions that could be challenged before the Debts Recovery Tribunal. However, what is required to be considered is that the petitioners contention that there is no mortgage created in accordance with law by depositing the original title deeds and therefore, the petitioners are not constrained to move Debts Recovery Tribunal and they are necessarily to be permitted to invoke the extraordinary jurisdiction of this court under Articles 226 and 227 of the Constitution of India. 12. This submission though made by the learned counsel for the petitioners, seems to be unjustified in the admitted fact that the petitioners have already invoked the jurisdiction of the Debts Recovery Tribunal and the Debts Recovery Tribunal says it is prima facie convinced with the submissions of the petitioners but it is the imposition of the condition with which the petitioners are really aggrieved. When that is the position, there is no reason as to why the petitioners should not have approached the Appellate Authority as provided under the SARFAESI Act. 13. When that is the position, there is no reason as to why the petitioners should not have approached the Appellate Authority as provided under the SARFAESI Act. 13. At this juncture, learned counsel for the petitioners has filed a Memo stating that the petitioners may be permitted to withdraw the Writ Petition so far as it relates to challenge to the impugned order passed by the Debts Recovery Tribunal at Annexure G. However, the petitioners seek liberty to keep open the other reliefs sought by the petitioners such as a direction to the 4th respondent Commissioner of Police to either constitute a Special team or transfer the case for investigation by the Economic Offences Wing of CID for investigation in respect of the FIR registered as per Annexure J in Crime No.21/2020. 14. In view of the discussions above and in view of the Memo filed by the learned counsel for the petitioners, while permitting the petitioners to approach the Appellate Authority under the provisions of SARFAESI Act and in view of the prima facie opinion of the Debts Recovery Tribunal on the merits of the matter, this Court deems it fit to stay the operation of the impugned order for a period of three weeks to enable the petitioners to approach the Appellate Authority. Liberty is also reserved to the petitioners to invoke the jurisdiction of this Court with respect to the other reliefs as mentioned herein above, if need be. Petition is accordingly disposed of.