Securitisation remedy is cumulative with recovery proceedings; secured creditor may take actual possession and ad valorem fee may apply.

The securitisation remedy under the 2002 Act was described as an additional, independent mode of enforcement that operates alongside recovery proceedings under the 1993 Act, so pending DRT proceedings did not require prior withdrawal before recourse to section 13. The statutory scheme and enforcement rules were read as permitting the secured creditor to take actual possession of immovable secured assets, subject to the borrower's remedy under section 17. The 2004 removal-of-difficulties order was upheld as a valid interim basis for levying ad valorem court fee on section 17(1) applications until rules were framed under the 2002 Act.

---

---

Issues: (i) whether withdrawal of the pending original application before the Debts Recovery Tribunal was a pre-condition for recourse to the securitisation remedy under the 2002 Act; (ii) whether taking possession under the 2002 Act included power to take actual possession of immovable secured assets; and (iii) whether ad valorem court fee was payable on an application under section 17(1) of the 2002 Act in the absence of rules framed under that Act.

Issue (i): Whether withdrawal of the pending original application before the Debts Recovery Tribunal was a pre-condition for recourse to the securitisation remedy under the 2002 Act.

Analysis: The two enactments were held to provide complementary and cumulative remedies for recovery of debt and enforcement of security interest. The proviso to section 19(1) of the 1993 Act was construed as an enabling provision intended to align procedure with the new securitisation remedy, not as a restriction on the independent exercise of powers under section 13 of the 2002 Act. The notice under section 13(2) was treated as a demand notice and as an action under the 2002 Act, and the doctrine of election was held inapplicable because the remedies were not inconsistent.

Conclusion: Withdrawal of the original application before the Debts Recovery Tribunal was not a condition precedent to taking recourse to the 2002 Act.

Issue (ii): Whether taking possession under the 2002 Act included power to take actual possession of immovable secured assets.

Analysis: The statutory scheme and the enforcement rules were read as permitting the secured creditor to take possession and protect the secured asset prior to sale, with the authorised officer having powers akin to and greater than those of a receiver for preservation of the security. The distinction between symbolic and actual possession was held not to be part of the statutory scheme, and the borrower's remedy under section 17 remained available to restore possession if the measures were found unlawful.

Conclusion: The power to take possession under the 2002 Act included the power to take actual possession of immovable secured assets.

Issue (iii): Whether ad valorem court fee was payable on an application under section 17(1) of the 2002 Act in the absence of rules framed under that Act.

Analysis: The Court held that the 2004 removal-of-difficulties order validly filled the gap concerning levy of fee and continued to operate until rules were framed under the 2002 Act. Section 17(1) was treated as conferring an original remedy, but the terminology did not affect the power to levy fees by reference to the existing procedural framework. The order did not alter the scheme of the Act and merely supplied a procedural deficiency.

Conclusion: Ad valorem court fee was payable as prescribed by the existing procedural framework pending framing of rules under the 2002 Act.

Final Conclusion: The statutory remedies under the 1993 Act and the 2002 Act were held to be cumulative and harmonious, the secured creditor was not required to withdraw the recovery proceeding before enforcing security under the 2002 Act, possession could be taken in the manner authorised by the Act and Rules, and the fee mechanism for section 17 applications was upheld.

Ratio Decidendi: Where the special statute creating the securitisation remedy provides an additional and independent mode of enforcement of security interest, the pendency of proceedings under the recovery statute does not bar simultaneous recourse to that remedy unless the legislature expressly makes withdrawal or prior permission a condition precedent.

---