Orissa High Court
Indumati Pattanaik vs Chief Manager And Authorised Officer, ... on 27 June, 2005
Equivalent citations: IV(2005)BC357, 100(2005)CLT65, 2005(II)OLR309, [2006]67SCL342(NULL)
Author: M.M. Das
Bench: M.M. Das
ORDER
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. T. Sahoo, Learned Counsel appearing for the opp. party-Bank, on the contrary, submits that Section 13(2) of the Act empowers the secured creditor under the Security Agreement to issue a notice to discharge his liability in full to the secured creditor within sixty days from the date of notice failing which the secured creditor is entitled to exercise all or any of the rights under Sub-section 4 of the said Section. He further submits that as the position of law stands, a notice under Section 13(2) of the Act has a right to raise his objection thereto and in the event any action is taken under Section 13(4) of the Act, the aggrieved person has a right of appeal against the said action before the Debts Recovery Tribunal. He, therefore, submits that as an alternative remedy by way of appeal is available under law, in the event of action being taken under Section 13(4) of the Act by the opp. party-Bank, the Writ Application in the present form is premature inasmuch as the same is also not maintainable as an alternative remedy is available.
4. 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.
5. Considering the submissions made, we are of the view that Article 226 of the Constitution of India itself does not prescribe that jurisdiction of this Court under the said Article cannot be exercised where an alternative remedy is available. Rather, it is by way of self-restraint that the Writ Court hesitates to exercise jurisdiction under Article 226 of the Constitution where an alternative remedy is available to the petitioner. It is an accepted position that even if an alternative remedy is available under a statute, it is still open to an aggrieved party to invoke the jurisdiction under Article 226 or 227 of the Constitution if it is found that the order passed or action taken is without jurisdiction or in violation of principles of natural justice.
6. A plain reading of Section 36 of the Act clearly shows that provision of the Limitation Act, 1963 is applicable to actions provided under the Act. Article 62 of the Limitation Act, 1963 prescribes the limitation for enforcing the right of a mortgagee where immovable property is offered as co-lateral security by way of mortgage for a loan advanced. The period prescribed under the said Article is twelve years. Admittedly, in this case, the loan having been advanced in the year, 1981, the period prescribed for enforcing the mortgage created by the petitioner as guarantor to the loan, expires some time in the year, 1993. Hence, we find that the action of opp. party-Bank in issuing notice to the petitioner under Section 13(2) of the Act is clearly barred by time and such action is prohibited under Section 36 of the Act.
7. We, therefore, have no hesitation in accepting the contention of Mr. Das that the notice issued under Section 13(2) of the Act vide Annexure-1 to the Writ Application was without jurisdiction being hopelessly barred by time. Accordingly, we quash the notice dated 5.7.2004 under Annexure-1 and also the subsequent public notice dated 17.11.2004 under Annexure-2 to the Writ Application.
The Writ Application is, accordingly, allowed but in the circumstances without costs.