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In the case of Mardia Chemicals, the Hon'ble Supreme Court made it clear that no right accrues to approach Debt Recovery Tribunal at any stage prior to Section 13(4) of the said Act. Or in other words right to approach the Tribunal under Section 17 of the said Act matures only when any measure is taken under Section 13(4) of the said Act.

According to Mr. Chowdhury, the proviso to Section 13(3A) read with the explanation added to Section 17(1) of the said Act makes it clear that the right to apply under Section 17 of the said Act matures only when any measure referred to in Section 13(4) is taken by the secured creditor or his authorised officer. According to Mr. Chowdhury, the aforesaid provision makes it clear that though action under Section 13(4) of the said Act can be taken preceded by service of notice under Section 13(2) of the said Act upon the borrower but, still then, restriction has been imposed upon the right of the borrower to approach the Tribunal under Section 17 of the said Act for challenging any action taken by the Bank under Section 13(2) or Section 13(3A) stage. Thus, Mr. Chowdhury submits that service of notice under Section 13(2) of the said Act upon the borrower cannot be regarded as an integral part of the cause of action.

Mr. Chowdhury thus submitted that integral part of the cause of action for the present purpose means any measure which will be taken by the bank and/or the secured creditor under Section 13(4) of the said Act. Mr. Chowdhury submitted that the spirit of the provision contained in Section 13(4) shows that the proceeding contemplated therein is akin to execution proceeding and in the instant case expression action is to be construed as a suit or a legal proceeding which has already commenced as per Section 13(4) of the said Act in Gujarat where the secured assets which are sought to be sold in execution, are lying. According to Mr. Chowdhury, the expression "action" used in the case of Transcore to describe a notice under Section 13(2) of the said Act would not convert the same into a cause of action to approach the Debt Recovery Tribunal under Section 17 particularly, in view of the expressed proviso contained in Section 13(3A) read with the provision of Section 17(1) of the SARFAESI Act.

For assessing the facts which exactly constitute an integral part of the cause of action for filing an application under Section 17 of the said Act, this Court is required to take note of provision contained in Section 13(2), Section 13(3A), Section 13(4) and Section 17(1) of the said Act read with Section 19 of the DRT Act.

If the aforesaid provisions are taken into consideration, then this Court finds that the entire realisation process is divided in two phases. The first phase of such process commences with service of demand notice and/or show cause notice under Section 13(2) of the said Act upon the borrower. Once such notice is served, the borrower gets a right to submit its representation in the form of his reply to the said show cause notice for denying and/or disputing the correctness of such demand and/or legality of such notice. If Such representation is submitted, then the concerned Bank/secured creditor is required to consider the said representation and to come to the conclusion as to the acceptability and/or tenability of the said representation and thereafter to communicate its decision to the borrower as per Section 13(3A) of the said Act. The proviso to Section 13(3A) of the said Act provides that such communication of the secured creditor's decision to the borrower will not confer any right upon the borrower to approach the Tribunal/Court for challenging the correctness of such decision. Thus, the decision of the secured creditor becomes final and conclusive so far as the legality and/or conclusiveness of such demand as assessed by the secured creditor.

On examination of the scheme of the said Act particularly Section 13 thereof, this Court has no hesitation to hold that the measures provided under Section 13(4) of the said Act is in the nature of execution of the ultimate decision of the secured creditor taken under Section 13(3A) of the said Act coupled with the fact of non-payment of the dues so determined under Section 13(2) and/or Section 13(3A) of the said Act.

Since the action under Section 13(4) of the said Act is in the nature of execution proceeding, the Tribunal within whose territorial jurisdiction the secured assets situate, is the only competent Tribunal whose jurisdiction can be invoked for filing an application under Section 17 of the said Act as the cause of action for the second phase of this chapter wholly arises within the jurisdiction of the said Tribunal.