ORDER : C. PRAVEEN KUMAR, J. 1. The present Writ Petition came to be filed, seeking to declare the action of the respondent in issuing notice dated 28.12.2021 and trying to take physical possession of the property bearing Door No.40-25-11/15, present Door No.40-25-42, situated at Koneru Chenna Kesava Rao Street, Patamata Lanka, Vijayawada without following the procedure contemplated under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 [for short, “SARFAESI Act”] and Rules and without extending time for compliance of OTS Scheme issued on 21.02.2022 as illegal, improper and incorrect. 2. The facts, in issue, are as under:- a) The petitioners herein obtained two Agri Term Loans from the respondent bank in the year 2015 for the purpose of agricultural activities. In January, 2018 the respondent bank declared the loan accounts of the petitioners as Non- Performing Assets [NPA] and accordingly initiated proceedings under SARFAESI Act by issuing the notice under Section 13(2) of the Act on 22.01.2018, to the Guarantor. The notice was served on the two petitioners, but not on the Guarantor. On coming to know about initiation of proceedings, the Guarantor paid an amount of Rs.19,00,000/- to regularize the loan account from NPA status. But, however, the respondent bank initiated further proceedings to obtain physical possession of the secured assets. Hence, the Guarantor approached the Debt Recovery Tribunal at Visakhapatnam vide S.A.No.249/2018 challenging the illegal acts committed by the respondent bank. b) Before the DRT, Visakhapatnam, the respondent bank filed a Memo stating that the bank is withdrawing the Possession Notice dated 10.05.2018 in respect of the two loan accounts and accordingly the said S.A. was dismissed as infructuous. Meanwhile, the respondent bank again issued a fresh Possession Notice under Section 8(1) of SARFAESI Act to the petitioners and thereafter, issued a Paper Publication on 28.12.2021. c) While so, the respondent bank has come up an OTS proposal. To close the pending two Agri loan accounts, the petitioners agreed for OTS and submitted an application for OTS by making payment of Rs.25,00,000/- i.e. Rs.12,50,000/- to each of the loan account. It is said that the bank accepted the proposal and accepted the part payment and granting time till 28.02.2022 to clear the balance agreed amount i.e. about Rs.37,50,000/- for each loan account. It is said that the bank accepted the proposal and accepted the part payment and granting time till 28.02.2022 to clear the balance agreed amount i.e. about Rs.37,50,000/- for each loan account. It is said that thereafter both the petitioners were infected with the COVID and as such, sought time, for payment of the amount. At that point of time, the respondent bank moved an application before the Chief Metropolitan Magistrate to take the Physical Possession of the asset without following the mandatory provisions under Section 13(2) and 13(4) of the Act. An Order came to be passed by the Chief Metropolitan Magistrate to that effect, which lead to filing of present Writ Petition. 3. (i) A counter came to be filed on behalf of the respondent disputing the averments made in the affidavit filed in support of the writ petition. One of the main objections taken is as to the maintainability of writ petition when there is an alternative remedy of appeal under Section 17 of the SARFAESI Act to the DRT, Visakhapatnam. It is further stated that no Writ Petition is maintainable against private bank, as it does not fall under Article 12 of the Constitution of India. Learned counsel for the Respondent relied upon a Judgment of Hon’ble Supreme Court in Phoenix ARC Private Limited V. Vishwa Bharati Vidya Mandir & Ors, 2022 SCC Online SC 44, in support of the said plea. (ii) It is further stated that when the owner of the property does not challenge the action of the bank under the provisions of SARFAESI Act, guarantor, who has nothing to do with the property is not entitled to challenge the same. On merits, it is stated that issuance of single notice in respect of two loans taken by two different persons, who are none other than the wife and husband is perfectly justified and there is no illegality or irregularity in issuing a common Possession Notice in relation to common security offered to two term loans. Since the security granted is not an agricultural land and as such the exemptions granted under Section 31 of the SARFAESI Act has no application. (iii) In so far as the rejection of OTS is concerned, it is contended that as against the outstanding loan amount of Rs.91,66,616.33 ps, the bank has agreed for OTS on payment of Rs.50,00,000/- on or before 28.02.2022. (iii) In so far as the rejection of OTS is concerned, it is contended that as against the outstanding loan amount of Rs.91,66,616.33 ps, the bank has agreed for OTS on payment of Rs.50,00,000/- on or before 28.02.2022. Except the payment of Rs.12.50 lakhs in respect of each of the loan account, the balance amount was not paid before 28.02.2022. It is said that in spite of time being granted beyond the date fixed, the petitioners failed to pay the same, as such, OTS came to be rejected. 4. Sri P.S.P. Suresh Kumar, learned counsel for the petitioners while reiterating the points raised in the affidavit filed in support of the writ petition, submits that the rejection of OTS is bad in law, as substantial amounts have been paid towards two loan accounts. In other words, his arguments is that earlier an amount of Rs.12,50,000/- was paid and pursuant to the interim order, a further sum of Rs.20,00,000/- was paid by the petitioners. Out of the total OTS amount of Rs.50,00,000/-, nearly Rs.32,50,000/- has been paid by the petitioners. Hence, he pleads that the order rejecting the OTS is bad in law. Coming to the maintainability of the writ petition, learned counsel for the petitioners would contend that the judgment of Hon’ble Supreme Court in Phoenix ARC relied upon by the learned counsel for the respondent would not apply to the case on hand. 5. Sri Ambadipudi Satyanarayana, learned Standing Counsel, appearing for the Respondent bank would submit that, since the Bank is not performing any public functions, a Writ against the private bank would not lie. He would contend that the Bank accepted the request of the petitioners in extending the time for payment of amount, but since the petitioners failed to pay the amount they were forced to reject the OTS. He further submits that all the mandatory requirements as contemplated are complied with, and as such, there is no illegality in issuing notice under Section 8(1) of the SARFAESI Act and also in rejection of OTS. 6. Since the issue involves substantial question of law namely maintainability of writ petition, we requested Sri Vivek Chandra Sekhar S, learned counsel to assist the Court as Amicus Curiae. 7. 6. Since the issue involves substantial question of law namely maintainability of writ petition, we requested Sri Vivek Chandra Sekhar S, learned counsel to assist the Court as Amicus Curiae. 7. In Board of Control for Cricket in India vs. Cricket Association of Bihar and others, (2015) 3 SCC 251 , the Hon’ble Supreme Court was dealing with an issue as to whether a writ under Article 226 of Constitution of India would lie against BCCI, when it is not a “State” within the meaning of Article 12 of the Constitution of India. After referring to the following judgments viz., (i) Sukhdev Singh vs. Bhagatram Sardar Singh Raghuvanshi reported in (1975) 1 SCC 421 ; (ii) Marsh vs. Alabama reported in 326 US 501 (1946); (iii) Ramana Dayaram Shetty vs. International Airport Authority of India reported in (1979) 3 SCC 489 ; (iv) Ajay Hasia vs. Khalid Mujib Sehravardi reported in (1981) 1 SCC 722 ; (v) Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology reported in (2002) 5 SCC 111 ; (vi) Board of Control for Cricket in India vs. Netaji Cricket Club reported in (2005) 4 SCC 741 ; (vii) Zee Telefilms Ltd. Vs. Union of India reported in (2005) 4 SCC 649 , the Hon’ble Supreme Court held as under:- “34. The functions of the Board are clearly public functions, which, till such time the State intervenes to takeover the same, remain in the nature of public functions, no matter discharged by a society registered under the Registration of Societies Act. Suffice it to say that if the Government not only allows an autonomous/private body to discharge functions which it could in law take over or regulate but even lends its assistance to such a non-government body to undertake such functions which by their very nature are public functions, it cannot be said that the functions are not public functions or that the entity discharging the same is not answerable on the standards generally applicable to judicial review of State action. 35. Our answer to Question (i), therefore, is in the negative, qua, the first part and affirmative qua the second. BCCI may not be “State” under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.” 8. 35. Our answer to Question (i), therefore, is in the negative, qua, the first part and affirmative qua the second. BCCI may not be “State” under Article 12 of the Constitution but is certainly amenable to writ jurisdiction under Article 226 of the Constitution of India.” 8. From the judgments referred to above, the Two Judge Bench of Hon’ble Supreme Court has categorically held that even though the BCCI is not a “State” within the meaning of Article 12 of the Constitution of India, still a Writ Petition under Article 226 of Constitution of India is maintainable having regard to the duties performed by BCCI. 9. This issue as to whether a ‘Writ’ would lie against a Private Bank came up for consideration before a Division Bench of the Punjab and Haryana High Court in Amrik Singh V. DCB Bank Limited and Another, 2022 LawSuit (P&H) 568, wherein it was held that, a Writ Petition is maintainable. The Court categorically held that, the decision in Phoenix ARC Private Limited [cited 1st supra] is inapplicable to the case on hand, as the said case was dealing with Asset Reconstruction Company. Apart from that, the Division Bench held that a writ would lie as measures under the provisions of Securitization & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 ['the SARFAESI Act'], are not yet been initiated and remedy under Section 17(1) of the SARFAESI Act, cannot be availed and the issue as to whether time can be extended for compliance of terms of One Time Settlement is not within the purview of the Debts Recovery Tribunal, having regard to the language in Section 17 of the SARFAESI Act. 10. In A-One Mega Mart P. Limited and Ors. 10. In A-One Mega Mart P. Limited and Ors. V. HDFC Bank and Ors., MANU/PH/3108/2012, another Division Bench of the Punjab and Haryana High Court, after referring to the Judgments of the Hon’ble Supreme Court in Praga Tools Corporation V. Shri C.V. Imanual and Others, AIR 1969 SC 1306 , MANU/SC/0327/1969, Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Survarna Jayanti Mahotsav Smarak Trust and Others V. V.R. Rudani and Others, AIR 1989 SC 1607 , MANU/SC/0028/1989, VST Industries Limited V. VST Industries Workers’ Union, (2001) 1 SCC 298 , MANU/SC/0760/2000, Binny Limited and another V. V. Sadasivan and others, (2005) 6 SCC 657 , MANU/SC/0470/2005; judgment of the Bombay High Court in Firozali Abdulkarim Jivani and another v. The Union of India and others, AIR 1992 Bom 179 , MANU/MH/0035/1992, judgment of the Delhi High Court in Rahul Mehra v. Union of India, 2004 (114) D.L.T. 323 , MANU/DE/0846/2004, and the Judgment of Punjab and Haryana High Court in Miss Ravneet Kaur v. The Christian Medical College, Ludhiana, held in paragraph Nos. 25, 26 and 27 as under: “25. Another factor which cannot be ignored is that under Section 17 of the SARFAESI Act, an appeal lies to the Debt Recovery Tribunal against the action of the Bank and against any order passed thereunder, an appeal is maintainable under Section 18 of the said Act to Debt Recovery Appellate Tribunal (DRAT). An order passed by DRAT is amenable to writ jurisdiction of the High Court. Section 34 of SARFAESI Act also has significance in deciding the issue relating to writ jurisdiction of this Court. This facet lends different dimension to the controversy raised herein. Section 34 bars the jurisdiction of civil courts in matters relating to actions where provisions of SARFAESI Act have been invoked. Constitution guarantees equality and strikes against any arbitrary action of an authority. It cannot be said that wherever any authority acts in a discriminatory or unreasonable manner, the aggrieved party would be without any remedy either by way of civil suit or by invoking writ jurisdiction of the High Court. In such circumstances, it cannot be held that an action by the Scheduled Bank to which the provisions of SARFAESI Act are applicable and have been invoked by it, it shall be immune from the extraordinary writ jurisdiction of this Court. 26. In such circumstances, it cannot be held that an action by the Scheduled Bank to which the provisions of SARFAESI Act are applicable and have been invoked by it, it shall be immune from the extraordinary writ jurisdiction of this Court. 26. Now adverting to the cases on which reliance had been placed by learned counsel for the respondent- Bank, the question in the Federal Bank's case (supra) was relating to employer-employee dispute for which the employee had sought to approach writ Court for exercise of extraordinary jurisdiction under Article 226/227 of the Constitution of India. It was in those circumstances, it was held that writ petition under Article 226 was not maintainable. However, Satyawati Tandon and Tamil Nadu Industrial Investment Corporation Limited's cases (supra) being different on facts do not advance the case of the respondents. 27. From the above, it is concluded that ordinarily no writ would lie against a private Bank. However, where the Bank is a Scheduled Bank under Reserve Bank of India Act, 1934 and is governed by the provisions of Banking Regulation Act, 1949, it shall be amenable to writ jurisdiction of this Court where the Scheduled Bank takes recourse to the provisions of SARFAESI Act. ……………..” 11. As far as maintainability of Writ Petition is concerned, it is not in dispute that Respondent – M/s. Kotak Mahindra Bank Private Limited, is a Scheduled Bank mentioned in the Schedule of the Reserve Bank of India Act, 1934, and is governed by the Banking Regulation Act, 1949. It is also not in dispute that the One Time Settlement policy framed by the respondent was based on circulars issued by the Reserve Bank of India. 12. At this stage, the learned Counsel brought to the notice of the Court the Judgment of the Hon’ble Supreme Court in Phoenix ARC Private Limited [cited 1st supra]. In the said case, the Apex Court, after referring to the judgments on the subject held as under: “12. Even otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers. 13. A perusal of the said judgment would indicate that, if the proceedings are initiated under the SARFAESI Act and any proposed action is sought to be taken and the borrower is aggrieved by any of the actions of the private bank/Bank/ARC, the borrower has to avail the remedy under SARFAESI Act and no Writ would lie or maintainable or entertainable. It is to be noted here that the judgments refers to Private Bank/Bank/ARC. The word ‘Bank’ referred to therein may take within its fold Nationalised Banks as well, against which, a Writ Petition would lie. Therefore, what appears to have been contemplated is that if the provisions of SARFAESI Act are invoked, the remedy available would be filing of an appeal under the provisions before the Debts Recovery Tribunal. Therefore, it cannot be said that no writ would lie against a Scheduled Bank in all circumstances. In the instant case, the fact that the respondent Bank is a Scheduled Bank is not in dispute. It is also not in dispute that the Scheduled Bank is functioning under Reserve Bank of India Guidelines and the provisions of the Banking Regulation Act, are made applicable to the said Bank. 14. In the instant case, the fact that the respondent Bank is a Scheduled Bank is not in dispute. It is also not in dispute that the Scheduled Bank is functioning under Reserve Bank of India Guidelines and the provisions of the Banking Regulation Act, are made applicable to the said Bank. 14. From the material available on record, it is clear that due to default committed by the Petitioners in payment of loans, possession notice came to be issued invoking the provisions of SARFAESI Act, which came to be challenged before the Debts Recovery Tribunal in S.A. No.249 of 2018. In view of the representation made that the Bank is withdrawing the possession notice, the S.A. was dismissed as infructuous. Thereafter, the Bank initiated fresh proceedings under the provisions of the SARFAESI Act and the Rules made there-under, for recovery of the amount. The Petitioners were given the benefit of getting their loans cleared in One Time Settlement Scheme. The record also shows that, out the total amount of Rs.50,00,000/- agreed to be accepted for closure of loan accounts under OTS Scheme, an amount of Rs.32,50,000/- was paid by the Petitioners. As the entire agreed amount could not be paid with the time fixed or even by the extended date, OTS benefit was denied. It appears from the record that, pursuant to the interim order passed by this Court, in this Writ Petition, a sum of Rs.20,00,000/- was also paid. 15. It is no doubt true that, extending benefit of One Time Settlement is discretion of the Bank. It may also be true that the Petitioners could not have paid the amount in time due to COVID Pandemic. At the same time, it is to be noticed that in view of the Judgment of the Hon’ble Supreme Court in The Bijnor Urban Cooperative Bank & Others V. Meenal Agarwal and Others, a positive direction cannot be given to the Bank, to offer One Time Settlement. In the said case, the Hon’ble Apex Court was dealing with a direction given by Allahabad High Court to Bijnor Urban Cooperative Bank, to consider granting One Time Settlement to a defaulter despite the Bank pleading that the provisions of SARFAESI Act have been initiated. 16. In the said case, the Hon’ble Apex Court was dealing with a direction given by Allahabad High Court to Bijnor Urban Cooperative Bank, to consider granting One Time Settlement to a defaulter despite the Bank pleading that the provisions of SARFAESI Act have been initiated. 16. But, in the instant case, as stated above, One Time Settlement Scheme was extended to the Petitioners and they have paid substantial amounts under the Scheme and could not repay the balance due as they became sick due to COVID. Under those circumstances, the judgment in the Bijnor Urban Cooperative Bank may not apply to the case on hand. Apart from that, it is also to be noted that pursuant to an interim direction given by this Court, an amount of Rs.20,00,000/- was paid under OTS Scheme. That being the position and a substantial amount has been paid, a direction can be given to the Bank to extend time for payment of balance amount. 17. The record placed before the Court also show that the provisions of SARFAESI Act came to be initiated by issuing a notice under Rule 8. Having regard to the judgment of the Hon’ble Apex Court, referred to above, if the petitioner intend to challenge the procedure as violative of provisions of SARFAESI Act, the remedy would be to approach DRT under Section 17 of the Act. But, issue, in the instant case relates to One Time Settlement, which was offered, accepted and lead to payment of substantial amount by the Petitioners. Further, a sum of Rs.20,00,000/- came to be paid pursuant to an interim order passed by this Court in this writ petition. Under those circumstances, it may not be proper for this Court to relegate the matter to Debts Recovery Tribunal, more so, when there is doubt as to whether the Debts Recovery Tribunal can enquire into the aspect of One Time Settlement Scheme or in other words, whether it has got jurisdiction to deal with the action of the Bank in not extending time for payment of balance of OTS amount. 18. Hence, the Writ Petition is disposed of, directing the Respondent Bank to give some more time to the Petitioners to comply with the One Time Settlement Scheme by paying the balance amount with interest, if any. 18. Hence, the Writ Petition is disposed of, directing the Respondent Bank to give some more time to the Petitioners to comply with the One Time Settlement Scheme by paying the balance amount with interest, if any. It is needless to mention that the Respondent Bank may fix a time limit for complying the same, within a period of four [04] weeks from today. Meantime, the Respondent Bank may not take any coercive steps. 19. With the above direction, the Writ Petition is disposed of. No order as to costs. 20. Before parting with the case, the Court places on record its appreciation and gratitude to the learned “Amicus Curiae” Sri Vivek Chandra Sekhar S, Advocate, for the valuable inputs and efforts made by him. Miscellaneous petitions pending, if any, shall stand closed.