C. NAGAPPAN, J.

Mr. N. Pappiah, learned counsel appearing for the petitioners 2 to 4 in the writ petition, submits that he is representing the learned counsel for the first petitioner also. By consent of learned counsel on both sides, writ petition itself is taken up for disposal.

2. The petitioners have sought, for issuance of a Writ of declaration declaring that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is ultra vires and unconstitutional, and liable to be struck down.

3. Briefly, the facts leading to filing of the writ petition are as follows. The first petitioner is a proprietory concern and it availed financial assistance from the first respondent Bank in the year 1981 by mortgaging the property of the proprietor bearing Door No.39, Burkit Road, T.Nagar, Chennai-600 017 and the loan is said to be repaid. Subsequently, the first petitioner availed fresh facility from the first respondent Bank in the year 1988 by mortgaging the very same property. There was default in repayment and the first respondent filed O.A.No.108 of 1998 before the Debts Recovery Tribunal, Chennai for recovery of the balance outstanding in the mortgage loan and the case was transferred to the file of Debts Recovery Tribunal-III, Chennai and got re-numbered as O.A.No.5 of 2007. In the meanwhile, the first petitioner sold the mortgaged property by two registered Sale deeds dated 19.11.1995 to the petitioners 2 to 4 herein and in the recitals of the Sale deeds, a reference was made about some payments made by the petitioners 2 to 4 towards the loan outstanding with the first respondent. To recover the dues, the first respondent initiated proceedings under the SARFAESI Act to enforce the security interest and issued Section 13(2) notice on 13.10.2004 calling upon the first petitioner to pay the balance outstanding of Rs.1,35,80,200/- (Rupees one crore thirty five lakhs eighty thousand and two hundred only) as on 13.10.2004 and the reply furnished by the borrower/first petitioner was not satisfactory and the first respondent through the second respondent, took symbolic possession of the secured asset an 10.2.2005. The petitioners herein challenged the SARFAESI proceedings by filing an application under Section 17 of the Act. During the pendency of the proceedings, the property was brought to sale by the respondents in the year 2005 and Mr. Mayilai Sugumar was the successful bidder who purchased the property for a sum of Rs.51,00,000/- (Rupees fifty one lakhs only). The SARFAESI Application was transferred to the file of Debts Recovery Tribunal-III, Chennai and got re-numbered as S.A.No.13 of 2007. The auction purchaser Mr. Mayilai Sugumar got impleaded in S.A.No.13 of 2007. The Debts Recovery Tribunal-III, on merits, dismissed S.A.No.13 of 2007 on 21.8.2008. Challenging the order, the petitioners herein preferred appeal in R.A.No.49 of 2009 on the file of Debts Recovery Appellate Tribunal, Chennai and it is pending. The second respondent filed Crl.M.P.No.3017 of 2008 on the file of Chief Metropolitan Magistrate, Chennai seeking assistance to secure physical possession of the secured asset under Section 14 of the Act. The order dated 22.1.2009 was passed appointing Advocate Commissioner to take possession but, however, possession was taken. At that time, the petitioners herein filed the present writ petition challenging Section 14 of the SARFAESI Act.

4. A Division Bench of this Court passed Order dated 16.2.2010 in M.P.No.1 of 2009 granting interim stay subject to the condition that the petitioners deposit a sum of Rs.25,00,000/- (Rupees twenty five lakhs only) with the first respondent Bank within four weeks from the date of receipt of the Order. The petitioners have not made the deposit and have filed M.P.NO.1 of 2010 seeking for modification of the Order of this Court dated 16.2.2010. At this stage, the writ petition is taken up.

5. The learned counsel for the petitioners submits that the first respondent Bank is not entitled to take physical possession of the secured asset after issuance of Sale Certificate in favour of the auction purchaser and they cannot maintain an application under Section 14(1) and (2) of the SARFAESI Act before the Chief Metropolitan Magistrate, Egmore, Chennai seeking assistance for taking possession of the secured asset and Section 14 of the Act is silent regarding issuance of notice to the borrower before passing any order in the petition filed by the secured creditor and there is violation of principles of natural justice in not hearing the borrower before passing an order under Section 14 of the Act and hence Section 14 of the Act is liable to be struck down as unconstitutional.

6. Per contra, the learned counsel appearing for the respondents submits that the Supreme Court in the decision in Mardia Chemicals Ltd. and Others v. Union of India and Others AIR 2004 SC 2371 [LQ/SC/2004/496] , has upheld the validity of the SARFAESI Act and its provisions except that of sub-section (2) of Section 17 of the Act and it is no longer res integra for the petitioners to contend that Section 14 of the SARFAESI Act is unconstitutional and a Division Bench of this Court, in the decision in Kathikkal Tea Plantations, rep. by its Managing Director v. State Bank of India, rep. by its Chief Manager and Others (2009) 7 MLJ 24: 2009 MHC 3299, has held that the secured creditor is entitled to take possession under Section 14(2) of the SARFAESI Act and the issuance of sale certificate is not a bar to take physical, possession and hence there is no merit in the contention of the learned counsel for the petitioners.

7. The contention of the petitioners that Section 14 is silent with regard to the issuance of notice to borrower before passing an order and it violates the principles of audi alterem partem, is devoid of merit.

8. The supreme Court in the celebrated decision in Mardia Chemicals Ltd. and Others v. Union of India And Others (supra) has upheld the validity of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and its provisions except the provision under sub-section (2) of Section 17 of the Act. Besides the First Bench of this Court, in the decision in Sundaram Home Finance Limited v. Tahsildar, Hqsur and Another 2007 (2) CTC 1, held that in view of the law laid down in Mardia Chemicals Ltd. And Others v. Union Of India And Others (supra), no notice is envisaged under Section 13(4) of the SARFAESI Act and the reasons for not accepting the objections alone are to be communicated before taking measures under Section 13 of the Act and this is the fairness that is required of the lender.

9. A Division Bench of the Bombay High Court in the decision in Trade Well and Another v. Indian Bank and Another 2007 BHC 461, has held that the Chief Metropolitan Magistrate or District Magistrate acting under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act is not required to give notice either to the borrower or to the third party and he has to only verify from the bank or financial institution whether notice under Section 13(2) of the Act was given or not and whether the secured assets fall within his jurisdiction.

10. We are in respectful agreement with the view expressed in the decisions rendered by the High Courts. Hence, the contention of the petitioners that Section 14 of the SARFAESI Act is unconstitutional, is liable to be rejected.

11. Insofar as the other contention as to whether issuance of sale certificate is a bar to take physical possession by filing an application under Section 14(2) of the Act is concerned, a Division Bench of this Court considered identical contention in the decision in Kathikkal Tea Plantations, rep. by its Managing Director v. State Bank of India, rep. by its Chief Manager and Others (supra) and answered the same by holding that- the secured creditor is entitled to take possession under Section 14(2) of the SARFAESI Act and the issuance of sale certificate is not a bar. For better appreciation, the relevant observations are extracted be row at p.36 of MLJ.

21. Therefore, in our opinion, in the absence of any specific stipulation in Section 13, the properties could be sold only after taking physical possession and also the combined reading of Sections 13 and 14 with the background of the object would show that it cannot be said that the secured creditor cannot take actual physical possession after issuing sale certificates merely for the reason that the language found in section 14 refers to the secured creditor and secured asset. Furthermore, as contended by the learned counsel for the petitioner in W.P.No.10228 of 2009, that under Section 13(10) even after sale, the bank can approach the Debts Recovery Tribunal by filing application having jurisdiction or a competent Court, for recovery of the balance amount. Further, the contention of the learned counsel for the banks that the character of the secured creditor cannot be said to be ceased by executing the sale certificate also cannot be ignored.

22. In view of the above discussions, we hereby hold that the respondents banks are entitled to take possession under Section 14(2) of the SARFAESI Act and the issuance of sale certificate is not a bar to take physical possession and the writ petitioners are not entitled for the reliefs sought for. Consequently all the writ petitions fail and are dismissed. No costs. Connected M.Ps. are closed.

We are in entire agreement with the view expressed in the above decision.

12. The respondents herein are entitled to take possession under Section 14 of the SARFAESI Act and prior issuance of sale certificate is not a bar to take physical possession.

13. There are no merits in the writ petition and the same is dismissed. No costs. Connected M.P.No.1 of 2009 and M.P.No.1 of 2010 are closed.

Petition dismissed.