ORDER : 1. Heard learned Senior Advocate Mr. Percy Kavina with learned advocate Mr. Aditya Pandya for the petitioners and learned advocate Mr. N. R. Parikh for the respondent No. 1 – Bank. 2. Having regard to the controversy involved in this petition and with the consent of the learned advocates of the parties and at the insistence of learned advocate Mr. N. R. Parikh for the respondent No. 1 – Bank to pass the order, the matter is taken up for hearing today. 3. Rule returnable forthwith. Learned advocate Mr. N. R. Parikh waives service of notice of rule on behalf of respondent No. 1 – Bank. Though served no one appears on behalf of respondent No. 2. 4. The brief facts of the case are as under:- 4.1 The petitioner – partnership firm availed the financial assistance from the respondent No. 1 – Bank consisting of overdraft limit of Rs. 280 lakhs, FITL of Rs. 64.16 lakhs, term loan of Rs. 108.60 lakhs and term loan (subsidy) of Rs. 82.92 lakhs in the year 2009. 4.2 The petitioner firm could not repay the outstanding dues of the respondent – Bank in the year 2009 and further in 2017. Therefore, the respondent – Bank issued a notice under section 13(2) of the Securitisation and Reconstruction of Financial Assests and Enforcement of Security Interest Act, 2002 (for short the ‘SARFAESI Act’) on 06.05.2019 calling upon the petitioners to pay Rs. 5,37,31,845.34/-. The petitioners thereafter submitted detailed reply-cum-objections on 0107.2019 which was rejected by the respondent – Bank on 19.09.2019. Thereafter, the respondent – Bank issued the possession notice under section 13(4) of the SARFAESI Act on 11.10.2019 and also filed an application under section 14 of the SARFAESI Act for obtaining the assistance of the authority before the District Magistrate, Banaskantha at Palanpur on 21.11.2019 along with 9 pointer affidavit in support of such application. The District Magistrate, Banaskantha at Palanpur passed the order dated 21.01.2020 under section 14 of the SARFAESI Act. The petitioner filed Securitisation Application No. 102 of 2020 before the Debt Recovery Tribunal – I, Ahmedabad (for short the DRT) on 12.03.2020. The respondent – Bank thereafter filed reply on 25.01.2021 in the Securitisation Application No. 102 of 2020 contending that all the necessary formalities are adhered to by the respondent – Bank while taking action under the SARFAESI Act. The respondent – Bank thereafter filed reply on 25.01.2021 in the Securitisation Application No. 102 of 2020 contending that all the necessary formalities are adhered to by the respondent – Bank while taking action under the SARFAESI Act. 4.3 The DRT by the impugned order dated 28.01.2021 dismissed the Securitisation Application filed by the petitioners. The respondent – Bank on the same day i.e. on 28.01.2021, had taken the physical possession of the subject property without following the due process of law. The petitioners being aggrieved by the impugned order dated 28.01.2021 has preferred this petition. 5. Learned Senior Advocate Mr. Percy Kavina for the petitioners submitted that the Presiding Officer of the DRT has dismissed the Securitisation Application No. 102 of 2020 mainly on the ground of delay without permitting the petitioners to raise all the contentions from the stage of issuance of notice under section 13(2) of the SARFAESI Act. 5.1 It was further submitted that the DRT has also not considered the merits of the matter with regard to the issue of the notice under section 13(2) of the SARFAESI Act which is contrary to the provisions as the respondent – Bank has not bifurcated the principal amount and interest in the said notice and therefore, such notice is not legal and tenable in the eye of law. 5.2 It is also submitted that the issue with regard to defective notice is squarely covered in favour of the petitioners in the case of Punjab National Bank Vs. M/s Mithilanchal Industries Pvt. Ltd. reported in 2020 SCC Online Guj 3441. It was submitted that in view of the decision of the Division Bench in the aforesaid case, the action / recourse under sub-section (4) of Section 13 of the SARFAESI Act is consequential upon the notice under Section 13(2) of the SARFAESI Act. Therefore, the provisions of Section 13(2) of the SARFAESI Act is required to be followed. 5.3 Learned Senior Advocate Mr. Kavina also submitted that the Tribunal in the impugned order has considered the issue of delay in Para No. 8 onwards without relying upon the decision of Manglesh Champaklal Gandhi V/s Aditya Birla Finance Limited reported in Special Civil Application No. 15765 of 2019. 5.3 Learned Senior Advocate Mr. Kavina also submitted that the Tribunal in the impugned order has considered the issue of delay in Para No. 8 onwards without relying upon the decision of Manglesh Champaklal Gandhi V/s Aditya Birla Finance Limited reported in Special Civil Application No. 15765 of 2019. However the Tribunal without following the said decision held that as the petitioners have failed to explain the delay and sufficient reasons for not coming before the DRT within time which would be fatal to challenge the previous steps for which the aggrieved person failed to file Securitisation Application within time. 5.4 It was further submitted that the petitioners have preferred Securitisation Application 102 of 2020 within 45 days from the date of passing of the order under section 14 of the SARFAESI Act by the District Magistrate on 21.01.2020. It was therefore submitted that the petitioners were entitled to raise all the contentions before the DRT in the Securitisation Application as held by this Court in the case of Manglesh C. Gandhi (Supra) as the Securitisation action taken by the respondent – Bank is continuous cause of action. It was submitted that the petitioners are not required to explain the delay once the latest cause of action is considered for the purpose of limitation to file the Securitisation Application. 5.5 It was candidly admitted by learned Senior Advocate Mr. Kavina that the petitioners have an alternative efficacious remedy to challenge the impugned order passed by the Debt Recovery Appellate Tribunal – I, Ahmedabad. However, it was submitted that as the Tribunal has exceeded its jurisdiction while passing the impugned order and as the Tribunal had not considered the decision of this Court in the case of Manglesh C. Gandhi (Supra) in its proper perspective, the petitioners have approached this Court for challenging the impugned order passed by the DRT. 6. On the other hand, learned advocate Mr. N. R. Parikh for the respondent – Bank has raised the preliminary objection about the maintainability of this petition in view of the availability of alternative efficacious remedy. It was submitted that if the petitioners are aggrieved by the impugned order dated 28.01.2021, the remedy is available before the Debt Recovery Tribunal as per the provisions of Section 18 of the SARFAESI Act. It was submitted that if the petitioners are aggrieved by the impugned order dated 28.01.2021, the remedy is available before the Debt Recovery Tribunal as per the provisions of Section 18 of the SARFAESI Act. In support of his submissions, learned advocate for the respondent – Bank relied upon the following decisions of the Supreme Court:- - In the case of Punjab National Bank V/s O.C. Krishnan and Ors reported in 2001 (6) SCC 569 - In the case of United Bank of India V/s Satyawati Tondon and Ors reported in 2010 (8) SCC 110 - In the case of Union Bank of India V/s Panchanan Subudhi reported in 2010 (15) SCC 552 - In the case of Kanaiyalal Lalchand Sachdev V/s State of Maharashtra reported in 2011 (2) SCC 782 - In the case of Punjab National Bank V/s Imperial Gift House reported in 2013 (14) SCC 622 - In the case of Authorised Officer State Bank of Tranvancore V/s Mathew K. C. reported in 2018 (3) SCC 85 - In the case of M/s Naitik Gems V/s Authorised Officer Religare Finvest Ltd. passed in Special Civil Application No. 9326 of 2020 - In the case of Phoenix ARC Private Limited V/s Vishwa Bharati Vidhya Mandir and Ors reported in 2022 (1) ALD 341 6.1 Relying upon the above decisions, it was submitted that the petition should not be entertained at this stage as the petitioners have not availed the alternative efficacious remedy before the DRAT. 6.2 Learned advocate Mr. Parikh invited the attention of this Court to the discussion made by the Tribunal in Para No. 20 of the impugned order at page No. 39 of the paper book to submit that the Tribunal has considered the issue of demand notice being defective as the same is issued for the amount due in FITL. It was pointed out that the Tribunal had relied upon the decision in the case of M/s Kiran Cold Storage and Ors V/s Bank of Baroda in S. A. No. 257 of 2019 decided on 21.02.2020. It was further submitted that since the Tribunal has considered the issue of demand notice inspite of holding that the application filed by the petitioners is beyond the period of limitation, the only remedy available with the petitioners is to challenge the impugned order Appellate Tribunal as the Tribunal has considered the matter on merits. 7. It was further submitted that since the Tribunal has considered the issue of demand notice inspite of holding that the application filed by the petitioners is beyond the period of limitation, the only remedy available with the petitioners is to challenge the impugned order Appellate Tribunal as the Tribunal has considered the matter on merits. 7. Having heard the learned advocates for the respective parties and having considered the materials placed on record as well as the subsequent decision of Division Bench of this Court in the case of Mithilanchal Industries Pvt. Ltd. (Supra) as well as the decision of the Supreme Court in the case of Phoenix ARC Pvt. Ltd. (Supra), it appears that though the Tribunal has considered the decision of Manglesh C. Gandhi (Supra) but the same is not applied in its true perspective. Section 17 of the SARFAESI Act provides for remedy to the aggrieved person against the action taken by the secured creditor under section 13 of the SARFAESI Act. Admittedly, the petitioners have taken recourse to the provision of Section 17 after passing of the order by the District Magistrate under section 14 within the period of 45 days as prescribed under section 17 of the SARFAESI Act. In such circumstances, it cannot be said that the petitioners have failed to approach the Tribunal within the prescribed time limit of limitation and the Tribunal was required to consider all the issues raised by the petitioners in the Securitisation Application on merits and decide the same in accordance with law. 7.1 It is true that there is an alternative remedy available to the petitioners, however, the impugned order passed by the Tribunal is without jurisdiction as the same is passed without considering the binding decision of this Court in the case of Manglesh C. Gandhi (Supra) wherein this Court observed as under:- “9. Having perused the sections of the Acts which are relevant for the purpose of deciding the controversy involved, let us not proceed to analyse the same. Mr. Aditya Pandya submitted that the issue no longer is a matter of debate as by a decision of the Division Bench of this Court rendered in the case of Corporation Bank versus Jayshreeben and Ors. Mr. Aditya Pandya submitted that the issue no longer is a matter of debate as by a decision of the Division Bench of this Court rendered in the case of Corporation Bank versus Jayshreeben and Ors. reported in 2013(1) GLH 628 , this Court considering the Division Bench decision of the Bombay High Court in the case of UCO Bank vs. M/s Kanji Manji Kothari reported in 2008(4) Mh.LJ 424 held that the provisions of Section 5 of the Limitation Act, 1963 shall apply to the provisions of Section 17 of the SARFAESI Act and therefore the DRT would have power to condone the delay if applications are filed before the DRT beyond the period of 45 days and if there is sufficient cause shown. The Mumbai High Court in the case of M/s. Kanji Manji (supra), in extenso considered the relevant provisions of the SARFAESI Act in juxtaposition with the provisions of the RDDB Act and the Limitation Act, 1963. Since the judgement in the case of Corporation Bank (supra) extensively has referred to the Bombay High Court judgement in the case of M/s. Kanji Manji (supra), it will be in the fitness of things to refer to the said decision first in point. xxx 15. I therefore hold that the judgement of the Gujarat High Court in the case of Corporation Bank (supra) is still a good law and therefore the DRAT was in error in holding that the DRT had no power to condone the delay in Applications filed under Section 17 of the SARFAESI Act. Xxx 17. This brings us to the second question raised by the parties which is when does the cause of action to file an Application under Section 13(4) would accrue and whether the Section is for more measures than one and any such measure can be challenged in an Application under Section 17 and that is there a continuous cause of action till the date of sale? 17.1 Section 13 of the SARFAESI Act is regarding enforcement of security interest. Under Section 13(2) of the Act on any default by the borrower in making payment the secured creditor may call upon the borrower by notice in writing to discharge his liabilities within sixty days from the date of the notice. 17.1 Section 13 of the SARFAESI Act is regarding enforcement of security interest. Under Section 13(2) of the Act on any default by the borrower in making payment the secured creditor may call upon the borrower by notice in writing to discharge his liabilities within sixty days from the date of the notice. As per sub-section (4) in case the borrower fails to discharge his liability in full within the specified sixty days, the secured creditor may take recourse to one or more measures to recover his secured debt. For the present we are concerned with measure (a). Clause(a) of sub-section (4) of Section 13 reads as under: “(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset.” 17.2 In this context just to recapitulate the submission of Mr. Aditya Pandya, learned advocate for the petitioner, the sale notice was dated 30.11.2018 and the Application was filed on 08.01.2019 within 45 days. He further submitted that the process of taking over possession and selling of secured asset as provided under Section 13(4)(a) is a continuous process and sale is an onward step which results in ultimate culmination of proceedings. Therefore the borrower can challenge the action of the Bank within 45 days from the last step of the process i.e. upto culmination of sale. Inviting my attention to Section 17 of the Act, Mr Pandya would submit that a person aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor may make an application. Challenge to the sale notice was therefore one of the measures and therefore the Application was within time. 18. Mr. Thakore had submitted that as each measure is separate and distinct, the cause of action of each measure was different and in absence of a challenge to the first measure of taking possession, subsequent action of the sale notice could not be set aside. Both the learned advocates for the parties had submitted that there is no decision on the issue at hand regarding when the cause of action could be said to commence and whether right upto the sale notice could it be said to be continuous. Mr. Both the learned advocates for the parties had submitted that there is no decision on the issue at hand regarding when the cause of action could be said to commence and whether right upto the sale notice could it be said to be continuous. Mr. Pandya had drawn my attention to a decision of the DRAT, Delhi in the case of Bank of Baroda vs Veena Chandyoke and Anr where the DRAT in Paras 12 , 13 and 14 the Tribunal has observed as under: “12. Since the notices under Section 13(2) of the SRFAESI Act and sale notice had been sent by the Bank to be served on respondent No. 1 herein (applicant in S.A.) in Australia, the above rules of the Australia Post are relevant. It is the own case of the appellant - Bank that the notices were received back unclaimed. Going by the above clarification as to the unclaimed articles given by the Australia Post, the notices were not actually served on respondent No. 1 herein. The Bank got them back in India unserved. 13. Even the sale notice was returned to the sender (Bank) on 9.1.2006. Sale took place on 6.1.2006. Rule 8 of the Security Interest (Enforcement) Rules, 2002 provides that the authorised officer would serve on the borrower a notice of 30 days of sale of immovable secured asset. When the sale notice itself was returned to the sender (Bank) from Australia on 9.1.2006, it is clear that notice was not sent with sufficient time margin to ensure its service before 30 days of the date of sale. Various steps permitted by law for realisation of the secured asset by the Bank of Financial Institution are not to be considered in isolation. In fact, they constitute a chain. Sale after taking possession is an onward step for the ultimate culmination of the proceedings starting with the issuance of notice under Section 13(2) of the SRFAESI Act. The sale having taken place on 6.1.2006, the filing of the S.A. on 12.1.2006 by respondent No. 1 could not at all be deemed to be beyond time. The Bank has unnecessarily been trying to put respondent No. 1 out of Court on nonexistent technical ground of limitation. 14. The sale having taken place on 6.1.2006, the filing of the S.A. on 12.1.2006 by respondent No. 1 could not at all be deemed to be beyond time. The Bank has unnecessarily been trying to put respondent No. 1 out of Court on nonexistent technical ground of limitation. 14. Adoption of measure by the Bank under Section 13(4) of the SRFAESI Act is towards sale of the secured asset for the realisation of the dues of the Bank and the borrower can challenge the action of the Bank till the final stage is reached. The right to challenge would come to an end only after the expiry of 45 days reckonable from the date of last concluded stage of the action of the Bank.” 18.1 The Tribunal has therefore held that various steps are not to be considered in isolation. In fact they constitute a chain. Sale after taking possession is an onward step for the ultimate culmination of the proceedings starting with the issuance of a notice under Section 13(2) of the SARFAESI Act. Adoption of the measure by the Bank under Section 13(4) of the SARFAESI Act is towards sale of the secured asset for realization of the dues of the Bank and the borrower can challenge the action till the final stage is reached. The right to challenge would come to an end only after the expiry of 45 days reckonable from the date of last concluded stage of the action of the Bank. 19. In M/s. Kanji Manji (supra), it was the case before the Bombay High Court that a challenge to the notice under Section 13(2) was made 9 months after action under Section 13(4) notice was initiated after taking symbolic possession. The DRT rejected the application as time barred as it was filed beyond 45 days of the date of symbolic possession. On appeal the DRAT held that there cannot be any other possession than actual possession and that an effective action can be taken by the aggrieved party only after actual possession is taken and therefore the borrower has a right to file an application within 45 days from the date of taking physical possession. The DRAT thus allowed the Appeal of the borrower and remanded the matter to decide the same in accordance with law which the Bank challenged by way of a Petition. The DRAT thus allowed the Appeal of the borrower and remanded the matter to decide the same in accordance with law which the Bank challenged by way of a Petition. The Bombay High Court in Para 39 of the judgement relying on the decision of the Supreme Court in the case of Mardia Chemicals (supra) held as under. “39. What is important to note is that while dealing with the grievance that the NPA Act is a draconian legislation and that it affords no protection to the borrower, the Supreme Court made the above observations. The Supreme Court fixed the point at which the borrower can make a grievance and clarified the scope of appeal under Section 17. The Supreme Court held that the borrower's right to approach the DRT as provided under Section 17 matures on any measures having been taken under Sub-section 4 of Section 13 of the NPA Act and on measures having been taken under subsection 4 of Section 13 and before the date of sale/auction of the property, it would be open for the borrower to file an appeal under Section 17 before the DRT. Thus appeal can be filed from the date on which any measures are taken under Section 13(4) till the date of sale/auction of the property. Obviously, therefore, after sale, there can be no appeal.” 19.1 It will be apt to quote para 80 of the judgement in the case of Mardia Chemicals (supra) which reads as under: “80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debts Recovery Tribunal. The abovenoted provisions are for the purpose of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows: 1. Under sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days’ notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows: 1. Under sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days’ notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debts Recovery Tribunal under Section 17 of the Act, at that stage. 2. As already discussed earlier, on measures having been taken under sub- section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debts Recovery Tribunal. 3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition as it may deem fit and proper to impose. 4. In view of the discussion already held in this behalf, we find that the requirement of deposit of 75% of the amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down. 5. Such a condition is invalid and it is liable to be struck down. 5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the court.” 19.2 The Supreme Court in Mardia Chemicals (supra) held that on measures having been taken under sub-section(4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal under Section 17 of the Act before the Debts Recovery Tribunal. It would be necessary to reproduce what the Bombay High Court culled as the gist of what the Supreme Court has said in Mardia Chemicals (supra) and Transcore (supra). “43. The following is the gist of what the Supreme Court has said in Mardia Chemical's case (supra) and Transcore's case (supra). (i) The NPA Act deals with crystallized liability. It deals with rights of the secured creditors. (ii) The NPA Act proceeds on the basis that the asset is created in favour of the secured creditors, which could be assigned to the Asset Management Company, which steps into the shoes of the secured creditors. The NPA Act provides for recovery of possession by non-adjudicatory process. (iii) Section 13(2) deals with liquidation of liability. It contemplates a notice of demand and constitutes action under the NPA Act. It proceeds on the basis that the borrower is already under a liability i.e. the debt has become due and the borrower's account in the bank is classified as substandard. It acts as an attachment because Section 13(13) forbids the borrower, after receipt of notice under Section 13(2), from transferring the secured assets, in any manner, without written consent of the secured creditor. (iv) Notice under Section 13(2) is a condition precedent to the invocation of Section 13(4) by the secured creditor and once notice under Section 13(2) is issued, the secured creditor is entitled to take any of the measures provided in Section 13(4). (v) Once any of the measures under Section 13(4) are taken, the security interest is already created in favour of the secured creditor. (v) Once any of the measures under Section 13(4) are taken, the security interest is already created in favour of the secured creditor. Under Rule 8 of the said Rules, the authorized officer is empowered to take possession by delivering the possession notice as per the prescribed format informing the borrower that the secured creditor has taken possession of the secured assets. (vi) Where possession is taken by the authorized officer, he shall take steps to protect the secured assets till they are sold (rule 8(4)). (vii) Provision for time of sale, issue of sale certificate and delivery of possession, etc. is made in Rule 9. (viii) Though Rule 8 refers to sale of immoveable secured assets, it deals with the stage anterior to the issuance of sale certificate and delivery of possession under Rule 9. (ix) Recourse to take possession of the secured assets of the borrower under Section 13(4) of the NPA Act comprehends the power to take actual possession of the secured assets. (x) There is no dichotomy between symbolic possession and actual possession. (xi) Any transfer of secured assets after taking possession or after taking over management of business under Section 13(4) by the secured creditor vests in the transferee all rights in relation to the secured assets. This is because thereafter assets vest in the secured creditor free of all encumbrances (Section 13(6)). (xii) If the dues of the secured creditor together with the costs, etc. are tendered to the secured creditor before the date fixed for sale/transfer, the secured assets shall not be sold or transferred by the secured creditor (Section 13(8)). (xiii) The provisions as contained under Sections 13 and 17 of the NPA Act provide adequate and efficacious mechanism to consider and decide the objections and disputes raised by a borrower against the recovery. (xiv) The right of the borrower to approach the DRT as provided under Section 17 of the NPA Act matures on any measures having been taken under Section 13(4) of the NPA Act. (xv) On measures having been taken under Section 13(4) of the NPA Act and before the date of sale/auction of the property, it would be open to the borrower to file an appeal under Section 17 before the DRT. (xv) On measures having been taken under Section 13(4) of the NPA Act and before the date of sale/auction of the property, it would be open to the borrower to file an appeal under Section 17 before the DRT. (xvi) Any person including the borrower aggrieved by any of the measures referred to in Sub-section (4) of Section 13 can approach the DRT by way of an application within 45 days from the date on which the measures are taken. (xvii) Remedy under Section 17 is in the nature of original proceedings. It is wrongly described as an appeal. It is a remedy in lieu of a suit. (xviii) Under Section 17(2), the DRT is required to consider whether any of the measures referred to in Sub-section (4) of Section 13 taken by the secured creditor are in accordance with the provisions of the NPA Act and the said Rules. (xix) If the DRT comes to the conclusion that the said measures are taken not in accordance with the provisions of the NPA Act and the said Rules, it may declare the recourse taken to the said measures as invalid and restore the possession of the secured assets to the borrower and may pass appropriate orders in relation thereto. (xx) The scheme of Section 13(4) read with Section 17(3) is that, if the borrower is dispossessed not in accordance with the provisions of the NPA Act, then the DRT is entitled to put the clock back by restoring the status quo ante. (xxi) Therefore, it cannot be said that if possession is taken before confirmation of sale, the rights of the borrower to get the dispute adjudicated upon is defeated by the authorized officer. [Emphasis Supplied] 19.3 The gist at (v) suggests that once any measures under Section 13(4) are taken, the security interest is already created in favor of the secured creditor. Under Rule 8 of the Rules, the authorized officer is empowered to take possession by delivering the possession notice as per the prescribed format informing the borrower that the secured creditor has taken possession of the secured assets. Gist (xiv) reads that the right of the borrower to approach the DRT as provided under Section 17 of the Act matures on any measures having been taken under Section 13(4) of the NPA Act. Gist (xiv) reads that the right of the borrower to approach the DRT as provided under Section 17 of the Act matures on any measures having been taken under Section 13(4) of the NPA Act. Gist(xv) reads that on measures having been taken under Section 13(4) of the NPA Act and before the date of sale/auction of property, it would be open to the borrower to file an appeal under Section 17 of before the DRT. Gist (xvi) reads that any person including the borrower aggrieved by any of the measures referred to in sub- section (4) of Section 13 can approach the DRT by way of an Application within 45 days from the date on which measures are taken. (xix) of the gist reads that if the DRT comes to the conclusion that the said measures are taken not in accordance with the provisions of the NPA Act and the said Rules, it may declare the recourse taken to the said measures as invalid and restore the possession of the secured assets to the borrower and may pass appropriate orders in relation thereto. (xx) reads that the scheme of Section 13(4) read with Section 17(3) is that, if the borrower is dispossessed not in accordance with the provisions of the NPA Act, then the DRT is entitled to put the clock back by restoring the position status quo ante. As per gist (xxi) it cannot be said that if possession is taken before the confirmation of sale, the rights of the borrower to get the dispute adjudicated upon is defeated by the authorized. 19.4 The Bombay High Court then in Paragraphs 51 and 52 held as under: “51. In our opinion, in the light of the observations of the Supreme Court in Mardia Chemical's case (supra) and in Transcore's case (supra), the conclusion is irresistible that though the proceedings before the DRT are in the nature of civil suit, the DRT cannot entertain a debate on the question whether the debt has become due or not because the NPA Act proceeds on the basis that the liability is crystallized and the debt has become due. The moment action under Section 13(4) is taken, security interest is also created in the secured assets. The DRT Act can obviously consider whether possession of the secured assets is taken in accordance with the NPA Act and the said Rules. The moment action under Section 13(4) is taken, security interest is also created in the secured assets. The DRT Act can obviously consider whether possession of the secured assets is taken in accordance with the NPA Act and the said Rules. This is more so because if the secured creditor is required to approach the Chief Metropolitan Magistrate/District Magistrate, as the case may be, under Section 14 of the NPA Act for help to take actual possession, notice is not required to be given to the borrower. He is not required to be heard (See Trade Well and Anr. v. Indian Bank and Anr. 2007 (1) Bom.C.R. (Cri.) 783). Therefore, if the borrower is dispossessed not in accordance with the provisions of the NPA Act and the said Rules, he can make grievance only before the DRT by filing an appeal under Section 17 and the DRT can restore the possession if a case is made out. The liability is crystallized. It cannot be adjudicated upon. In this connection, we may also refer to Section 19 of the NPA Act which enables the DRT to award compensation and costs to the borrower in case it finds, while dealing with an application under Section 17, that possession of the secured assets was not taken in accordance with the Page 0763 NPA Act and the said Rules. Section 17 covers borrower as well as aggrieved third parties. All grievances relating to measures under Section 13(4) not having been taken in accordance with the NPA Act and the rules made thereunder can be raised under Section 17(1). That is the width or the amplitude of those proceedings. Proceedings under Section 17 are an original action to the above extent. “52. As stated by the Supreme Court, the right of the borrower to resort to Section 17 matures on measures having been taken under Section 13(4) and he can file an appeal till the sale of the secured assets. There can be no appeal after the sale.” 19.5 The Bombay High Court held that the right of the borrower to resort to Section 17 measures having been taken under Section 13(4) of the NPA Act he can file an Appeal till the sale of the secured assets. (emphasis supplied). In paragraphs 53 & 55 of the judgement, the Bombay High Court held as under: “53. (emphasis supplied). In paragraphs 53 & 55 of the judgement, the Bombay High Court held as under: “53. In our opinion, in the light of the exposition of law made by the Supreme Court in Mardia Chemical's case (supra) and Transcore's case (supra), it must be held that under the scheme of the NPA Act and the said Rules, taking over possession of the secured assets and sale of the secured assets are two distinct and different concepts. The borrower's right, title and interest in the secured assets is extinguished the moment measures under Section 13(4) are taken such as taking over symbolic or actual possession of the secured assets. He can make a grievance that those measures were not taken in accordance with the provisions of the NPA Act. Thereafter, he has no right to appeal against any steps taken towards sale. 55. We are unable to agree with his submission that Rules 8(3) and 8(4) and Rules 8(5) and 9(6) contemplate accrual of cause of action at those stages or that they are sub-measures for taking possession. Such a view will frustrate the object of the NPA Act viz. enforcement of security interest. We have already observed that taking over possession of the secured assets and sale of the secured assets are two different and distinct concepts. Since the security interest is created in the secured assets, the borrower after possession is taken over, having lost his right, title and interest has no locus to challenge the sale. Undoubtedly, Rule 8 contemplates a notice of sale to the borrower. Rule 9(1) also contemplates a notice to the borrower. Rule 9 says that if the authorized officer fails to obtain a price higher than the reserved price, he may with the consent of the borrower and the secured creditor effect the sale at a price less than the reserved price. In our opinion, these rules reflect the anxiety of the legislature to ensure that as far as possible the secured asset is sold at the highest available price. The intention is not to be unfair to the borrower. In fact, as per Section 13(8), if the dues of the secured creditor together with costs, etc. are tendered at any time before the sale, the secured asset is not to be sold or transferred by the authorized officer. The intention is not to be unfair to the borrower. In fact, as per Section 13(8), if the dues of the secured creditor together with costs, etc. are tendered at any time before the sale, the secured asset is not to be sold or transferred by the authorized officer. It is clear from this that the intention of the legislature is not to encourage the secured creditor to somehow take possession of the secured assets. A long rope is given to the borrower to pay the debts or else the secured asset in which the security interest of the secured creditor is Page 0764 already created is liable to be sold and the borrower cannot frustrate the sale. Notice of sale contemplated under the said Rules is obviously to give an opportunity to the borrower to bring a buyer who can buy the secured assets at a higher price. But, in no way, he can make the sale an impossibility by raising objections. We, therefore, reject the submission of Mr. Bulchandani that under Rules 8(3) and (4) and Rules 8(5) and (6), there is accrual of cause of action and the borrower can appeal at that stage.” 19.6 Reading of the enunciations in the aforesaid paras would indicate that the Bombay High Court opined that taking over possession of the secured assets are two different concepts. The borrower’s right, title and interest in the secured assets is extinguished the moment measures under Section 13(4) are taken such as taking over symbolic or actual possession of the secured assets. He can make a grievance that those measures were not taken in accordance with the provisions of the NPA Act. Thereafter, he has no right to appeal against any steps taken towards sale. (emphasis supplied). In the aforesaid para the submissions of the Learned Advocate for the borrower made in Paras 21 and 22 were rejected. To better appreciate the question decided it will be better to produce the gist of submissions made in Paras 21 and 22. They read as under “21. Mr. Bulchandani submitted that if the case of the petitioners is to be accepted that the rights of borrowers extinguish on expiry of 45 days of date of possession notice issued under Rule 8(1), then breaches of subsequent Rules 8(3) to (6) will not be open to any challenge/scrutiny. Mr. They read as under “21. Mr. Bulchandani submitted that if the case of the petitioners is to be accepted that the rights of borrowers extinguish on expiry of 45 days of date of possession notice issued under Rule 8(1), then breaches of subsequent Rules 8(3) to (6) will not be open to any challenge/scrutiny. Mr. Bulchandani submitted that if the submission of the petitioner is to be accepted, then there will be no case before DRT for consideration whether the procedure under Rules 8(3) to (6) has been complied with by the secured creditor, since according to the petitioners rights of borrower is completely extinguished and, therefore, none can question any illegality committed by the secured creditor. This would dilute provisions of Sections 17(2) and (3), besides causing grave and irreparable harm, injury and injustice to the borrower. 22. Mr. Bulchandani laid stress on Sections 13(6), 13(8), Rule 8(1), (3) to (6) and contended that there is sufficient indication in these provisions that the borrower can pay the debt and redeem the secured asset. He submitted that the liability to pay crystalizes but the extent of liability is always subject to the scrutiny of DRT. When the extent of liability is disputed or when non-compliances of the provisions of the NPA Act or the said Rules is alleged by the borrower, it is DRT which is the forum for the borrower to approach Page 0755 and this in the cause of justice, equity and fair deal to the borrower has to be at any stage before the sale of the asset. Thus, it stands to logic and rationality that the borrower has a right to approach DRT either after the symbolic possession is taken after service of possession notice under Section 13(4) (a) read with Rules 8(1) and (2), or after actual possession is taken under Section 13(4)(a) read with Section 14 and Rules 8(3), (4) or after sale notice is received by the borrower under Rule 8(6), all read with Section 17(1), but before completion of sale.” 19.7 In the context of the submissions therefore that the borrower has a right to approach DRT either after symbolic possession is taken after service of possession notice under Section 13(4)(a) read with Rules 8(1) and 8(2) or after actual possession is taken under Section 13(4)(a) read with section 14 and Rules 8(3), (4) or after sale notice is received by the borrower under Rule 8(6), all read with Section 17(1), but before the completion of sale is rejected when one reads Para 55 of the judgement. Therefore, what can be culled out from the judgement is that the borrower has to approach the DRT by way of an Appeal at the first instance. Reading Para 56 of the judgement so indicates. “56. Mr. Bulchandani laid stress on the observations of the Supreme Court that on measures having been taken under Sub- section (4) of Section 13 and before the sale/auction, it would be open to the borrower to file an appeal under Section 17. There can obviously be no dispute about this proposition. But, it cannot be inferred from this that, at every stage, in the process of sale, the borrower can appeal to the DRT. The borrower cannot wait till the date of auction is fixed and treat any time in between as the starting point for limitation and frustrate the sale. Besides, that will encourage indolence which the law does not approve. The law does not encourage the indolent. What the Supreme Court has emphasized is that after sale, there can be no appeal. The borrower cannot wait till the date of auction is fixed and treat any time in between as the starting point for limitation and frustrate the sale. Besides, that will encourage indolence which the law does not approve. The law does not encourage the indolent. What the Supreme Court has emphasized is that after sale, there can be no appeal. But, that does not mean that procedure for sale can be challenged by filing an appeal because as already stated by us, the right, title and interest of the borrower is already extinguished after measures under Section 13(4) are taken.” 19.8 The Bombay High Court held that though there can be no dispute about the proposition that the borrower can approach the DRT before the date of sale but the Court held that it cannot be inferred from this that at every stage, in the process of sale, the borrower can appeal. The borrower cannot wait till the date of auction is fixed and treat any time in between as the starting point for limitation and frustrate the sale. The law does not encourage the indolent. What the Supreme Court, in the opinion of the Bombay High Court held that after sale, there can be no appeal. 20. In a recent decision in the case of Hindon Forge Private Limited and Another versus State Of Uttar Pradesh and Another reported in (2019) 2 SCC 198 , the Full Bench decision of the Allahabad High Court was under scrutiny. Before the Allahabad High Court, a learned single judge noticed divergent opinions expressed by two different benches on the question whether an application under Section 17(1) of the SARFAESI Act at the instance of the borrower, is maintainable even before physical or actual possession of secured assets is taken by the Banks/Financial Institutions in exercise of powers under Section 13(4) of the Act read with Rule 8 of the Enforcement Rules, 2002. The Full Bench in the relevant paras answered the questions as under: “34. Thus, the scheme of the provisions of Sections 13 and 17 of the Act, read with Rules 8 and 9 of the Rules, would show that the “measure” taken under Section 13(4)(a) read with Rule 8 would not be complete unless actual (physical) possession of the secured assets is taken by the Bank/Financial Institutions. Thus, the scheme of the provisions of Sections 13 and 17 of the Act, read with Rules 8 and 9 of the Rules, would show that the “measure” taken under Section 13(4)(a) read with Rule 8 would not be complete unless actual (physical) possession of the secured assets is taken by the Bank/Financial Institutions. In our opinion, taking measure under Section 13(4) means either taking actual/physical possession under clause (a) of subsection (4) of Section 13 or any other measure under other clauses of this Section and not taking steps to take possession or making unsuccessful attempt to take measure under Section 13(4) of the Act. Similarly, following the procedure laid down under Section 14 and/or Rules 8 and 9, where the Bank meets with resistance, would only mean taking steps to seek possession under Section 13(4) (a) and the “measure” under sub-section (4)(a) of Section 13 would stand concluded only when actual/physical possession is taken or the borrower loses actual/physical possession. It is at this stage alone or thereafter, the borrower can take recourse to the provisions of Section 17(1) of the Act. The transfer of possession is an action. Mere declaration of possession by a notice, in itself, cannot amount to transfer of possession, more particularly where such a notice meets with resistance. When the possession is taken by one party, other party also loses it. In the present case, adversial possession in being claimed by the secured creditor against the borrower. It is not possible that both will have possession over the secured assets. The possession of the secured creditor would only come into place with the dispossession of the borrower. We may also observe that in a securitisation application under Section 17(1), the borrower will have to make a categoric statement that he lost possession or he has been dispossessed and pray for possession. “106. The possession of the secured creditor would only come into place with the dispossession of the borrower. We may also observe that in a securitisation application under Section 17(1), the borrower will have to make a categoric statement that he lost possession or he has been dispossessed and pray for possession. “106. Issuance of possession notice, as observed earlier, gives borrower and the public in general an intimation that the secured creditor has taken possession of the property and at that stage, it is quite possible, may be in view of resistance or if the Banks chooses to take only symbolic possession, to state that the secured creditor has taken symbolic/constructive possession and not physical possession, but that by itself would not entitle the borrower to raise challenge under Section 17(1) of the Act, as held by the Supreme Court in Noble Kumar (supra). Unless the borrower loses actual (physical) possession, he cannot take recourse to provisions of Section 17(1). Even while taking steps under Section 13(4) of the Act read with Rule 8 of the Rules, in a given case, the bank may not physically dispossess the borrower and wait till it takes steps to conduct actual sale/auction of the secured assets i.e. till he issues notice under Rule 8(6) of the Rules. Even that by itself, from the scheme of the Act and the Rules, in the backdrop of the objective of the Act, in our opinion, does not confer any right to take recourse to Section 17(1). The borrower can file securitisation application under Section 17(1) only when he physically loses possession. 111. We are, therefore, of the firm and considered opinion that taking “symbolic possession” or issuance of possession notice under Appendix IV of the Rules, meeting with any resistance, cannot be treated as “measure”/s taken under Section 13(4) of the Act and, therefore, the borrower at that stage cannot file an application under Section 17(1) before DRT. In other words, a securitisation application under Section 17(1) of the Act is maintainable only when actual/physical possession is taken by the secured creditor or the borrower loses actual/physical possession of the secured assets. Once the right to approach DRT matures and securitisation application under Section 17(1) is filed by the borrower, it is open to DRT to deal with the same on merits and pass appropriate orders in accordance with law. Once the right to approach DRT matures and securitisation application under Section 17(1) is filed by the borrower, it is open to DRT to deal with the same on merits and pass appropriate orders in accordance with law. Thus, the question referred to for our consideration stands answered in terms of this judgment. The judgment of this Court in Aum Jewels (supra), in our opinion, does not enunciate the correct law.” 20.1 Therefore, the Full Bench of the Allahabad High Court held that only when actual possession and not symbolic possession is taken over that the borrower’s right to file an Application under Section 17 (1) of the SARFAESI Act matures. The Supreme Court disagreed with the view of the Full Bench after a detailed analysis of the provisions of Section 13(4) read with the provisions of Rule 8 of the Enforcement Rules, 2002. In Para 23 of the judgement the Supreme Court observed as under: “23. The judgment in Mardia Chemicals (supra) had made it clear in paragraph 80 that all measures having been taken under section 13(4), and before the date of sale auction, it would be open for the borrower to file a petition under section 17 of the Act. This paragraph appears to have been missed by the Full Bench in the impugned judgment.” 20.2 The Court held that in view of the judgement of Mardia Chemicals (supra) all measures having been taken under Section 13(4) and before the auction- sale, it would be open for the borrower to file a petition under Section 17 of the Act. Paragraphs 24 to 34 and Paras 41 and 42 thereof of the judgement in the case of Hindon Forge (supra) are reproduced hereunder: “24. A reading of section 13 would make it clear that where a default in repayment of a secured debt or any instalment thereof is made by a borrower, the secured creditor may require the borrower, by notice in writing, to discharge in full his liabilities to the secured creditor within 60 days from the date of notice. It is only when the borrower fails to do so that the secured creditor may have recourse to the provisions contained in section 13(4) of the Act. It is only when the borrower fails to do so that the secured creditor may have recourse to the provisions contained in section 13(4) of the Act. Section 13(3-A) was inserted by the 2004 Amendment Act, pursuant to Mardia Chemicals (supra), making it clear that if on receipt of the notice under section 13(2), the borrower makes a representation or raises an objection, the secured creditor is to consider such representation or objection and give reasons for non-acceptance. The proviso to section 13(3-A) makes it clear that this would not confer upon the borrower any right to prefer an application to the Debts Recovery Tribunal under section 17 as at this stage no action has yet been taken under section 13(4). 25. When we come to section 13(4)(a), what is clear is that the mode of taking possession of the secured assets of the borrower is specified by rule 8. Under section 38 of the Act, the Central Government may make rules to carry out the provisions of the Act. One such rule is rule 8. Rule 8(1) makes it clear that “the authorised officer shall take or cause to be taken possession”. The expression “cause to be taken” only means that the authorised officer need not himself take possession, but may, for example, appoint an agent to do so. What is important is that such taking of possession is effected under sub- rule (1) of rule 8 by delivering a possession notice prepared in accordance with Appendix IV of the 2002 Rules, and by affixing such notice on the outer door or other conspicuous place of the property concerned. Under sub- rule (2), such notice shall also be published within 7 days from the date of such taking of possession in two leading newspapers, one in the vernacular language having sufficient circulation in the locality. This is for the reason that when we come to Appendix IV, the borrower in particular, and the public in general is cautioned by the said possession notice not to deal with the property as possession of the said property has been taken. This is for the reason that, from this stage on, the secured asset is liable to be sold to realise the debt owed, and title in the asset divested from the borrower and complete title given to the purchaser, as is mentioned in section 13(6) of the Act. This is for the reason that, from this stage on, the secured asset is liable to be sold to realise the debt owed, and title in the asset divested from the borrower and complete title given to the purchaser, as is mentioned in section 13(6) of the Act. There is, thus, a radical change in the borrower dealing with the secured asset from this stage. At the stage of a section 13(2) notice, section 13(13) interdicts the borrower from transferring the secured asset (otherwise than in the ordinary course of his business) without prior written consent of the secured creditor. But once a possession notice is given under rule 8(1) and 8(2) by the secured creditor to the borrower, the borrower cannot deal with the secured asset at all as all further steps to realise the same are to be taken by the secured creditor under the 2002 Rules. 26. Section 19, which is strongly relied upon by Shri Ranjit Kumar, also makes it clear that compensation is receivable under section 19 only when possession of secured assets is not in accordance with the provision of this Act and rules made thereunder. 24 The scheme of section 13(4) read with rule 8(1) therefore makes it clear that the delivery of a possession notice together with affixation on the property and publication is one mode of taking “possession” under section 13(4). This being the case, it is clear that section 13(6) kicks in as soon as this is done as the expression used in section 13(6) is “after taking possession”. Also, it is clear that rule 8(5) to 8(8) also kick in as soon as “possession” is taken under rule 8(1) and 8(2). The statutory scheme, therefore, in the present case is that once possession is taken under rule 8(1) and 8(2) read with section 13(4)(a), section 17 gets attracted, as this is one of the measures referred to in section 13(4) that has been taken by the secured creditor under Chapter III. 27. Rule 8(3) begins with the expression “in the event of”. These words make it clear that possession may be taken alternatively under sub-rule (3). The further expression used in sub-rule (3) is “actually taken” making it clear that physical possession is referred to by rule 8(3). 27. Rule 8(3) begins with the expression “in the event of”. These words make it clear that possession may be taken alternatively under sub-rule (3). The further expression used in sub-rule (3) is “actually taken” making it clear that physical possession is referred to by rule 8(3). Thus, whether possession is taken under either rule 8(1) and 8(2), or under rule 8(3), measures are taken by the secured creditor under section 13(4) for the purpose of attracting section 17(1). 28. The argument made by the learned counsel for the respondents that section 13(4) (a) has to be read in the light of sub-clauses (b) and (c) is therefore incorrect and must be rejected. Under sub-clause (c), a person is appointed as manager to manage the secured assets the possession of which has been taken over by the secured creditor only under rule 8(3). Further, the rule of noscitur a sociis cannot apply. Sub-clause (b) speaks of taking over management of the business of the borrower which is completely different from taking over possession of a secured asset of the borrower. Equally, sub-clause (d) does not speak of taking over either management or possession, but only speaks of paying the secured creditor so much of the money as is sufficient to pay off the secured debt. These arguments must therefore be rejected. 29. Equally fallacious is the argument that section 13(4) must be read in the light of sections 14 and 15. There is no doubt whatsoever that under section 14(1), the Magistrate takes possession of the asset and “forwards” such asset to the secured creditor. Equally, under section 15 there is no doubt that the management of the business of a borrower must actually be taken over. These are separate and distinct modes of exercise of powers by a secured creditor under the Act. Whereas sections 14 and 15 have to be read by themselves, section 13(4)(a), as has been held by us, has to be read with rule 8, and this being the case, this argument must also be rejected. 30. Yet another argument was made by the learned counsel for the respondents that section 17(3) would require restoration of possession of secured assets to the borrower, which can only happen if actual physical possession is taken over. 30. Yet another argument was made by the learned counsel for the respondents that section 17(3) would require restoration of possession of secured assets to the borrower, which can only happen if actual physical possession is taken over. Section 17(3) is a provision which arms the Debts Recovery Tribunal to give certain reliefs when applications are made before it by the borrower. One of the reliefs that can be given is restoration of possession. Other reliefs can also be given under the omnibus section 17(3) (c). Merely because one of the reliefs given is that of restoration of possession does not lead to the sequitur that only actual physical possession is therefore contemplated by section 13(4), since other directions that may be considered appropriate and necessary may also be given for wrongful recourse taken by the secured creditor to section 13(4). This argument again has no legs to stand on. 31. Another argument made by learned senior counsel for the respondents is that if we were to accept the construction of section 13(4) argued by the appellants, the object of the Act would be defeated. As has been pointed out hereinabove in the Statement of Objects and Reasons of the original enactment, paragraphs 2(i) and 2(j) make it clear that the rights of the secured creditor are to be exercised by officers authorised in this behalf in accordance with the rules made by the Central Government. Further, an appeal against the action of any bank or financial institution is provided to the concerned Debts Recovery Tribunal. It can thus be seen that though the rights of a secured creditor may be exercised by such creditor outside the court process, yet such rights must be in conformity with the Act. If not in conformity with the Act, such action is liable to be interfered with by the Debts Recovery Tribunal in an application made by the debtor/borrower. Thus, it can be seen that the object of the original enactment also includes secured creditors acting in conformity with the provisions of the Act to realise the secured debt which, if not done, gives recourse to the borrower to get relief from the Debts Recovery Tribunal. Thus, it can be seen that the object of the original enactment also includes secured creditors acting in conformity with the provisions of the Act to realise the secured debt which, if not done, gives recourse to the borrower to get relief from the Debts Recovery Tribunal. Equally, as has been seen hereinabove, the Statement of Objects and Reasons of the Amendment Act of 2004 also make it clear that not only do reasons have to be given for not accepting objections of the borrower under section 13(3-A), but that applications may be made before the Debts Recovery Tribunal without making the onerous pre-deposit of 75% which was struck down by this Court in Mardia Chemicals (supra). The object of the Act, therefore, is also to enable the borrower to approach a quasi-judicial forum in case the secured creditor, while taking any of the measures under section 13(4), does not follow the provisions of the Act in so doing. Take for example a case in which a secured creditor takes possession under rule 8(1) and 8(2) before the 60 days’ period prescribed under section 13(2) is over. The borrower does not have to wait until actual physical possession is taken (this may never happen as after possession is taken under rule 8(1) and 8(2), the secured creditor may go ahead and sell the asset). The object of providing a remedy against the wrongful action of a secured creditor to a borrower will be stultified if the borrower has to wait until a sale notice is issued, or worse still, until a sale actually takes place. It is clear, therefore, that one of the objects of the Act, as carried out by rule 8(1) and 8(2) must also be subserved, namely, to provide the borrower with instant recourse to a quasi-judicial body in case of wrongful action taken by the secured creditor. 32. Another argument that was raised by learned senior counsel for the respondents is that the taking of possession under section 13(4)(a) must mean actual physical possession or otherwise, no transfer by way of lease can be made as possession of the secured asset would continue to be with the borrower when only symbolic possession is taken. This argument also must be rejected for the reason that what is referred to in section 13(4)(a) is the right to transfer by way of lease for realising the secured asset. This argument also must be rejected for the reason that what is referred to in section 13(4)(a) is the right to transfer by way of lease for realising the secured asset. One way of realising the secured asset is when physical possession is taken over and a lease of the same is made to a third party. When possession is taken under rule 8(1) and 8(2), the asset can be realised by way of assignment or sale, as has been held by us hereinabove. This being the case, it is clear that the right to transfer could be by way of lease, assignment or sale, depending upon which mode of transfer the secured creditor chooses for realising the secured asset. Also, the right to transfer by way of assignment or sale can only be exercised in accordance with rules 8 and 9 of the 2002 Rules which require various preconditions to be met before sale or assignment can be effected. Equally, transfer by way of lease can be done in future in cases where actual physical possession is taken of the secured asset after possession is taken under rule 8(1) and 8(2) at a future point in time. If no such actual physical possession is taken, the right to transfer by way of assignment or sale for realising the secured asset continues. This argument must also, therefore, be rejected. 33. Shri Ashish Dholakia, learned Advocate, appearing for the intervenor, State Bank of India, argued that if we were to upset the Full Bench judgment, there would be little difference between the Recovery of Debts Act and the SARFAESI Act as banks would not be able to recover their debts by selling properties outside the court process without constant interference by the Debts Recovery Tribunal. We are of the view that this argument has no legs to stand on for the reason that banks and financial institutions can recover their debts by selling properties outside the court process under the SARFAESI Act by adhering to the statutory conditions laid down by the said Act. It is only when such statutory conditions are not adhered to that the Debts Recovery Tribunal comes in at the behest of the borrower. It is only when such statutory conditions are not adhered to that the Debts Recovery Tribunal comes in at the behest of the borrower. It is needless to add that under the Recovery of Debts Act, banks/financial institutions could not recover their debts without intervention of the Debts Recovery Tribunal, which the SARFAESI Act has greatly improved upon, the only caveat being that this must be done by the secured creditor following the drill of the SARFAESI Act and rules made thereunder. Shri Dholakia then referred to and relied upon section 3 of the Transfer of Property Act, 1882. Under the said section, “a person is said to have notice” of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Shri Dholakia referred to and relied upon Explanation II to this definition, which reads as under: “Explanation II.—Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.” 34. We fail to understand what relevance Explanation II could possibly have for a completely different statutory setting, namely, that of the SARFAESI Act and the 2002 Rules thereunder. For the purpose of the Transfer of Property Act, a person acquiring immovable property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. For the purpose of the SARFAESI Act read with the 2002 Rules, the taking of possession by a secured creditor of the secured asset of the borrower would include taking of possession in any of the modes prescribed under rule 8, as has been held by us hereinabove. This argument must also, therefore, be rejected. 41. For the purpose of the SARFAESI Act read with the 2002 Rules, the taking of possession by a secured creditor of the secured asset of the borrower would include taking of possession in any of the modes prescribed under rule 8, as has been held by us hereinabove. This argument must also, therefore, be rejected. 41. Appendix IV-A which is now inserted by the said notification reads as follows: “APPENDIX - IV-A [See proviso to rule 8 (6)] Sale notice for sale of immovable properties E-Auction Sale Notice for Sale of Immovable Assets under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with proviso to Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002 Notice is hereby given to the public in general and in particular to the Borrower (s) and Guarantor (s) that the below described immovable property mortgaged/charged to the Secured Creditor, the constructive/physical ______________ (whichever is applicable) possession of which has been taken by the Authorised Officer of ______________ Secured Creditor, will be sold on “As is where is”, “As is what is”, and “Whatever there is” on ______________ (mention date of the sale), for recovery of Rs. due to the ______________ Secured Creditor from (mention name of the Borrower (s)) and ______________ (mention name of the Guarantor (s)). The reserve price will be Rs. ______________ and the earnest money deposit will be Rs. ______________ (Give short description of the immovable property with known encumbrances, if any) For detailed terms and conditions of the sale, please refer to the link provided in ______________ Secured Creditor’s website i.e. www. (give details of website) Date: Authorised Officer Place: ” This appendix makes it clear that statutorily, constructive or physical possession may have been taken, pursuant to which a sale notice may then be issued under rule 8(6) of the 2002 Rules. Appendix IV-A, therefore, throws considerable light on the controversy before us and recognises the fact that rule 8(1) and 8(2) refer to constructive possession whereas rule 8(3) refers to physical possession. 42. We are therefore of the view that the Full Bench judgment is erroneous and is set aside. Appendix IV-A, therefore, throws considerable light on the controversy before us and recognises the fact that rule 8(1) and 8(2) refer to constructive possession whereas rule 8(3) refers to physical possession. 42. We are therefore of the view that the Full Bench judgment is erroneous and is set aside. The appeals are accordingly allowed, and it is hereby declared that the borrower/debtor can approach the Debts Recovery Tribunal under section 17 of the Act at the stage of the possession notice referred to in rule 8(1) and 8(2) of the 2002 Rules. The appeals are to be sent back to the Court/Tribunal dealing with the facts of each case to apply this judgment and thereafter decide each case in accordance with the law laid down by this judgment.” 20.3 From reading the paras quoted hereinabove, it is clear that on reading the provisions of Section 13(4) with Rule 8, the Court held that once possession notice is given under Rule 8(1) and Rule 8(2) by the secured creditor to the borrower, the borrower cannot deal with the secured asset at all and all further steps to realize the same are to be taken by the secured creditor under the 2002 Rules. The Court further held that the scheme of Section 13(4) read with Rule 8(1) therefore makes it clear that the delivery of a possession notice together with the affixation on the property and publication is one of the modes of taking possession. The statutory scheme therefore is that once possession is taken under Rule 8(1) and 8(2) read with Section 13(4)(a), Section 17 gets attracted, as this is one of the measures referred to in Section 13(4) that has been taken by the secured creditor under Chapter III. The Supreme Court considering the object of the act held that is also to enable the borrower to approach a quasi-judicial forum in case the secured creditor, while taking any of the measures under Section 13(4), does not follow the provisions of the Act in doing so. Therefore, if the judgement of Mardia Chemicals (supra) and Hindon Forge (supra) are read together what emerges is that a borrower’s right to approach the Tribunal under Section 17 of the Act gets attracted the moment possession notice under Rules 8(1) and 8(2) of the 2002 Rules are issued. Therefore, if the judgement of Mardia Chemicals (supra) and Hindon Forge (supra) are read together what emerges is that a borrower’s right to approach the Tribunal under Section 17 of the Act gets attracted the moment possession notice under Rules 8(1) and 8(2) of the 2002 Rules are issued. The other question that is also decided is that as per Mardia Chemicals (supra) he can approach the Tribunal before the date of auction sale. 21. In my opinion therefore the submission of Mr Pandya that the borrower can challenge the action of the Bank within 45 days from the last step of the process i.e. sale notice which is obviously before the date of auction sale is a proposition that deserves to be accepted. The case of the petitioner before the Tribunal was that there was complete non-compliance of the mandatory provisions of the Rules and therefore the Tribunal has observed that although the petitioners have failed to approach the Tribunal within 45 days but the glaring mistake in the process of the respondent bank since the initiation is so vital flagrant and glaring that the Tribunal set aside the entire process and directed that the Bank can proceed further afresh and restrained the Bank further on the auction. 22. The DRAT has reversed the decision of the DRT only on the ground that there was no power with the DRT to condone the delay once it was admittedly beyond time by 45 days. In the Appeal filed before the DRAT, the DRAT did not examine the contentions of the Bank on merits raised in the Appeal, regarding the fact that it had in fact followed the mandatory provisions of Rules such as issuance of notice; procedure of affixation and publication etc. The DRAT, though such contentions were raised, decided the appeal only on the ground of the powers of the DRT to condone delay without going into the merits of the issues raised before the DRT. Since in the earlier part of the judgment while deciding the first question, I have held that the DRT had the powers to condone delay, the judgement of the DRAT which is only based on this issue is quashed and set aside. Accordingly the order dated 14.08.2019 passed by the DRAT in Appeal No.28 of 2019 is quashed and set aside. 23. Accordingly the order dated 14.08.2019 passed by the DRAT in Appeal No.28 of 2019 is quashed and set aside. 23. In light of the decisions of the Supreme Court in the case of Mardia Chemicals (supra) and Hindon Forge (supra) which have held that the cause of action to the borrower accrues from the time the notice under Rule 8(1) and 8(2) is issued and the borrower can approach the Tribunal before the date of auction sale, I agree with the submission of Mr. Pandya that the right accrues till such date and negate the submission of Mr. Mihir Thakore, learned Senior Advocate that each measure is a separate cause of action and once the first measure is not challenged the petitioner cannot subsequently do so. Such submission of Mr. Thakore is not in consonance with the law as discussed hereinabove. 24. With regard to the rest of the issues, it will be open for the respective parties to raise all the contentions before the DRAT, which shall proceed to decide the appeal on merits. The matter is therefore remanded to the DRAT to decide the Appeal No.28 of 2019 on merits. With the aforesaid observations and directions, the petition is allowed.” 7.2 Applying the above decision to the facts of the case, instead of relegating the petitioners to avail the alternative efficacious remedy, it would be proper to remand the matter back to the Tribunal to decide the same on merits in accordance with law on all the issues which are raised by the petitioner in the Securitisation Application. 8. In view of the above reasons, the petition is allowed to the aforesaid extent. The impugned order dated 28.01.2021 is hereby quashed and set aside and the petitioner is relegated back to the Debt Recovery Tribunal – I, Ahmedabad and the Debt Recovery Tribunal – I, Ahmedabad shall restore the S.A. No. 102 of 2021 and decide the same in accordance with law. 8.1 It is clarified that this Court has not gone into the merits of the matter and all the contention raised on behalf of both the sides are kept open to be considered by the Tribunal in accordance with law. Rule is made absolute to the above extent. No order as to costs.