INDUMATI PATTANAIK Vs. CHIEF MANAGER AND AUTHORISED

JUDGEMENT

(1.) THE petitioner calls in question the notice issued to her under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the Act'). From the said notice under Annexure -1, it appears that a cash credit limit of Rs. 2,00,000/ - and a demand loan of Rs. 1,19,000/ - were advanced by the opp. party -Bank of India, Bhubaneswar Branch to one M/s. Utkal Udyog and the petitioner was a guarantor to the said loan. It also appears that in addition to the letter of guarantee executed by the petitioner in favour of the said Bank, the petitioner also created equitable mortgage over her immovable properties in favour of the said Bank. The said mortgage was offered as a co -lateral security for the loan advanced to M/s. Utkal Udyog. It also further appears from Annexure -1 that the said loan was not repaid by the Principal Debtor and on the date of receipt of the notice under Annexure -1, i.e., on 5.7.2004, the balance outstanding in the aforesaid two loan accounts was Rs. 94,54,146.30.

(2.) MR . S. S. Das, Learned Counsel for the petitioner submits that the notice under Annexure -1 issued by the opp. party -Bank under Section 13(2) of the Act is wholly without jurisdiction being barred by law of limitation. The petitioner being aggrieved by the said notice, has approached this Court under Article 226 of the Constitution of India with a prayer to quash the said notice as no other equitable and efficacious remedy is available to the petitioner.

(3.) MR . S. S. Das draws the attention of the Court to the provision of Section 36 of the Act which reads as follows : '36. Limitation : No secured creditor shall be entitled to take all or any of the measures under Sub -section (4) of Section 13, unless his claim in respect of the financial asset is made within the period of limitation prescribed under the Limitation Act, 1963.' Relying on the above provision, Mr. Das submits that since it is clear from the notice under Annexure -1 that the loan was granted and the letter of guarantee was executed on 13.7.1981, applying provision of the Limitation Act, 1963, the opp. party -Bank could not have issued the impugned notice under Section 13(2) of the Act which ultimately would culminate in an action under Section 13(4) of the Act. In reply to the contention that the Writ Application is not maintainable due to availability of alternative remedy, Mr. Das submits that even in a given case, where an alternative remedy is available, power under Article 226 of the Constitution can be exercised by this Court if the said alternative remedy is not an efficacious remedy and the action challenged is wholly without jurisdiction on the face of it.