1. Petitioner is an Advocate practising in this Court and is a senior citizen. Even though multifarious reliefs are sought in this Writ Petition, the challenge is essentially against SARFAESI proceedings initiated by the Respondent Bank as per Ext.P12 Notice dated 23.09.2024 issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘SARFAESI Act’).

2. The wife of the Petitioner had availed a home loan of Rs.16 lakhs from the Respondent Bank in the year 2011. The wife of the Petitioner died on 28.04.2015. Thereafter, the Petitioner continued to repay the loan. The Respondent Bank initiated SARFAESI proceedings by issuing Ext.P12 Notice to the Petitioner and other legal heirs of the deceased borrower when they defaulted the repayment of the loan. This Court referred the matter for mediation as per Order dated 02.11.2024. Since the Mediator sought time to complete the mediation, further proceedings pursuant to Ext.P12 Notice were deferred as per Order 23.01.2025 and the same was extended from time to time. As per the Report dated 28.01.2025, the Mediator reported that the matter is not settled in mediation. Thereafter also, the interim order was extended from time to time.

3. The Respondent Bank filed Counter Affidavit dated 06.02.2025, Additional Counter Affidavit dated 17.05.2025, opposing the prayers in the Writ Petition and the Petitioner filed Reply Affidavit dated 26.03.2025, replying to the contentions raised by the Respondent Bank in the Counter Affidavit.

4. I heard the learned Senior Counsel for the Petitioner, Sri.K.Ramkumar, instructed by Adv. Sri. N.K. Subramanian, and the learned Counsel for the Respondent Bank, Sri.Amal George.

5. The learned Senior Counsel for the Petitioner submitted that the Respondent Bank has no right or authority to issue Ext.P12 Notice under Section 13(2) of the SARFAESI Act since the only allegation in Ext.P12 Notice is that the Petitioner and other legal heirs of the original borrower defaulted on the repayment of the loan. The Bank has the right to initiate proceedings under Section 13(2) of the SAFAESI Act only if the account of the borrower is classified as a non-performing asset. As per Section 2(1)(o), “non-performing asset” is an asset or account of a borrower which has been classified by a Bank or financial institution as sub-standard, doubtful or loss asset. The Secured Creditor has no right or authority to declare an account as a non-performing asset when the same is only in default. There is no allegation in Ext.P12 that the asset or the account of the borrower has been classified as sub-standard, doubtful or loss asset. The learned Senior Counsel contended that it is mandatory to issue Notice to the borrower before classifying the account as a non-performing asset in view of the decision of the Hon’ble Supreme Court in State Bank of India and Others v. Rajesh Agarwal and Others [(2023) 6 SCC 1] which is followed by this Court in the decision in Saidalavi v. Reserve Bank of India [2026 (3) KLT 66]. Even though the Respondent Bank contended that the Respondent Bank has issued Exts.R1(C) and R1(D) Notices before classifying the account as non-performing account, it is clear from Exts.R1(C) and R1(D) that they are issued in the name of the deceased borrower long after the death of the borrower and they cannot be treated as a notice to the Petitioner. The learned Senior Counsel contended that there is a contradiction between Ext.P12 Notice and Ext.P20 Statement of Account with respect to the amount outstanding. The Respondent Bank did not credit various amounts transferred from the Bank of India mentioned in Ext.P21 Statement. In spite of several requests from the side of the Petitioner, the Respondent Bank has been refusing to furnish the amount actually due from the Petitioner. Without fixing the actual amount due under the loan account, the Ext.P12 Notice under Section 13(2) of the SARFAESI Act cannot be sustained. At this stage, the Petitioner cannot challenge Ext.P12 proceedings before the DRT. Though the Petitioner requested for OTS by submitting several Applications, the Bank has refused to consider the same as revealed from Ext.P6 reply. A perusal of Exts.R1(C) and R1(D) would reveal that they are only computer printouts without any proof of delivery to the Petitioner. The specific case of the Petitioner is that the outstanding amount would be less than Rs.10 lakhs if the amounts paid by the borrower and the Petitioner are duly adjusted. The learned Senior Counsel further cited the decision of the Hon’ble Supreme Court in Commissioner of Income Tax and Others v. Chhabil Dass Agarwal [(2014) 1 SCC 603] to substantiate the point that the existence of an alternative remedy is not a bar for a Writ Petition filed under Article 226 and that there are exceptions to the general rule. The learned Senior Counsel concluded his arguments by praying to allow the Writ Petition setting aside the SARFAESI proceedings initiated as per Ext.P12 Notice.

6. Per contra, the learned Standing Counsel for the Respondent Bank contended that the Writ Petition is not maintainable on several grounds. Firstly, the Petitioner is having a statutory remedy under the SARFAESI Act. Secondly, the Writ Petition is not maintainable since the matter arises out of contractual obligations. Thirdly, disputed questions of fact are involved which could not be adjudicated in a Writ Petition filed under Article 226 of the Constitution of India. It is well settled by the decisions of the Hon’ble Supreme Court and this Court that proceedings under the SARFAESI Act should not be interfered with in Writ Petitions filed under Article 226 of the Constitution. Even though the Petitioner contended that the Respondent Bank has not credited the amounts transferred from the Bank of India, the Bank of India is not made a party to the Writ Petition. There are only vague averments regarding this in the Writ Petition. Ext.P20 Statement would reveal that the amounts received from Bank of India are duly credited to the loan account. Ext.P21 could not be relied on as the same is not properly certified and it would reveal that there are duplications of the transactions. The Petitioner has no bona fides in the Writ Petition. The loan was restructured as per Ext.R1(B) dated 31.12.2020 granting a moratorium of two years and after the moratorium period, EMI was to be started from 31.12.2022. The Petitioner paid amounts less than the regular EMI as per Ext.R1(B) only till December 2023 and hence the Respondent Bank was compelled to classify the loan as NPA on 28.02.2024. It is true that the Petitioner submitted Exts.P3, P4 and P5 Requests for OTS, but the same were without any bona fides. The Respondent Bank replied to the Requests as per Ext.P6, directing the Petitioner to approach the appropriate authority of the Bank, but the Petitioner did not approach the appropriate authority for OTS. The Petitioner has not made any payment after December 2023. The Petitioner has been enjoying an unconditional stay since January 2025. The Petitioner had enough time to settle the loan. The Petitioner has not made any single payment during the pendency of the Writ Petition. The learned Standing Counsel concluded his arguments praying to dismiss the Writ Petition with costs.

7. I have considered the rival contentions.

8. The Petitioner has filed this Writ Petition essentially challenging SARFAESI proceedings initiated by the Respondent Bank as per Ext.P12 Notice dated 23.09.2024. The wife of the Petitioner was the borrower. Since the borrower died, Ext.P12 Notice was issued to the Petitioner and other legal heirs of the deceased borrower. The Petitioner has filed this Writ Petition on 07.10.2024, i.e., immediately after receipt of Ext.P12 Notice without submitting any objection to Ext.P12 Notice. As per Section 13(2) of the SARFAESI Act, the Secured Creditor is to issue notice to the borrower demanding to discharge liabilities within 60 days, when the borrower makes default in repayment of the secured debt or any instalment thereof and his account is classified as a non-performing asset. There is no dispute that the borrower has committed default in repayment of loan instalments and that the Bank has classified the account as a non-performing asset. Sub-Section 3A of Section 13 of the SARFAESI Act enables the borrower to make any representation or to raise any objection against the Notice issued under Section 13(2) of the SARFAESI Act. On filing such representation/objection, if the Secured Creditor comes to the conclusion that such representation or objection is not acceptable or tenable, the Secured Creditor shall communicate the reasons for not accepting the representation/objection to the borrower within fifteen days. Section 17 provides for challenging the measures initiated under Section 13(4) of the SARFAESI Act. The Petitioner ought to have submitted his Objection against Ext.P12 Notice rather than rushing to this Court and filing the present Writ Petition. This Court entertained the Writ Petition and granted interim order in favour of the Petitioner only to enable the Petitioner to settle the matter in mediation. Even after the failure of mediation, the Petitioner has been enjoying an unconditional stay of the SARFAESI proceedings. The Petitioner did not make any payment to the Bank to show his bona fides. Even now, the contention of the Petitioner is that the Petitioner is ready to settle the loan under OTS if the outstanding amount is correctly fixed by the Respondent Bank. The Petitioner did not approach the competent authority for availing OTS, even though the Bank issued Ext.P6 Reply requesting to do so. The Petitioner could have paid the undisputed dues to show his bona fides. If the Petitioner is having any dispute regarding the quantum of liability, the same cannot be agitated in this Writ Petition. The contentions of the Petitioner require evidence, and hence they are to be agitated before the Debts Recovery Tribunal. The legality of the SARFAESI proceedings is a matter for the Debts Recovery Tribunal to consider under Section 17 Application. The contention of the learned Senior Counsel is that the Petitioner had to be given notice before classifying the account as a non-performing asset and since no notice was given to the Petitioner, the SARFAESI proceedings are bad. The decisions cited by the learned Senior Counsel in Rajesh Agarwal (supra) and Saidalavi (supra) in support of this contention are not applicable to the case on hand. Those decisions deal with the classification of an account as fraud in terms of Reserve Bank of India Master Directions on Frauds - Classification and Reporting by Commercial Banks and Select Financial Institutions. It does not deal with the classification of non-performing assets under the SARFAESI Act. Neither the SARFAESI Act nor the Rules made thereunder mandate notice to the borrower before classifying the account as a non-performing asset. Accordingly, I find that the Writ Petition filed by the Petitioner is not maintainable and the same is liable to be dismissed.

9. Since the Petitioner has approached this Court by filing this Writ Petition immediately on receipt of Ext.P12 Notice, the Petitioner is free to submit his objections to Ext.P12 within a reasonable period and in case of submission of any such representation/objection, the Respondent Bank is to consider the same in accordance with law.

10. Accordingly, this Writ Petition is dismissed giving liberty to the Petitioner to submit his Representation/Objection to Ext.P12 Notice within a period of two weeks from the date of receipt of a certified copy of this judgment and in case of submission of such Representation/Objection by the Petitioner, the Competent Authority of the Respondent Bank is directed to consider the same in accordance with law.