Dipankar Datta, J. - (1.) IN this writ petition, affirmed on May 9, 2012, the petitioners have prayed for quashing of notices dated July 22, 2002 and March 14, 2012 issued by the authorised officer of the respondent No. 1/Bank. While the former was issued under Section 13(2) of the Securitization and Reconstruction of financial Assets and Enforcement of Security Interest Act (hereafter the Act), the latter was issued under Section 13(4) thereof read with Rule 8(1) of the Security Interest (Enforcement) Rules. Primarily, three points have been urged by Mr. Dutta, learned Advocate representing the petitioners in support of the prayer for quashing of the impugned notices. The same are: (i) Considering the object sought to be achieved by introduction of the Act i.e. enforcement of security interest created in favour of a secured creditor without intervention of Courts or Tribunals, it must be held that measures under Section 13(4) ought to follow within a reasonable period from lapse of the period fixed in the demand notice under Section 13 (2) thereof for clearing the liability. However, in the present case there is a hiatus of more than 9 years between issuance of the demand notice and the possession notice and the unduly delayed act of taking of possession must be held to be barred by limitation. (ii) No security interest was created in respect of Plot No. 304 and, therefore, the respondent No. 2 acted without jurisdiction in taking possession of the same. (iii) Action of the respondent No. 2 in taking possession is also bad because a representation dated August 8, 2002 made by the petitioners in response to the demand notice dated July 22, 2002 was not considered and answered. In aid of the first point as noted above, reliance was placed by Mr. Dutta on the decisions of the Supreme Court in Gram Panchayat, Kakran v. Addl. Director of Consolidation & Anr., : (1997) 8 SCC 484 and State of Gujarat v. Patil Raghav Natha, : (1969) 2 SCC 187 whereas the Bench decision of this Court in Debasree Das v. State of West Bengal & Ors., : 3 (2011) BC 330 : 2011 (1) CHN Cal 10 was relied on in support of the second point.
(2.) LAW is well settled that once the secured creditor takes a measure of the nature permitted by Section 13(4) of the Act, the High Court in exercise of writ powers ordinarily ought not to interfere. It is only in exceptional cases when the Court is fully convinced that the secured creditor could not have invoked the provisions of the Act against the borrower or any other person that interference is called for. A case where commission of error by a secured creditor while exercising jurisdiction is demonstrated ought to be left for decision by the Tribunal. It is also well settled that if adjudication of a point would necessitate leading of evidence on factual aspects, the Court may not interfere even though a prima facie case for interference appears to have been set up. In this connection, one is reminded of the decision of the Supreme Court in Kanaiyalal Lalchand Sachdev v. State of Maharashtra, : 2 (2011) SLT 188 : 1 (2011) BC 698 (SC) : (2011) 2 SCC 782, wherein interference was declined, inter alia, on the specious ground that receipt or non -receipt of the demand notice under Section 13(2) of the Act would involve adjudication of a disputed question of fact for which the Tribunal constituted under Section 17(1) thereof is best suited. The decision in United Bank of India v. Satyawati Tondon & Ors., : 3 (2010) BC 495 (SC) : 6 (2010) SLT 52 : (2010) 8 SCC 110, is another decision of recent origin wherein the Supreme Court has observed that interference with proceedings initiated under the Act ought not to follow at the drop of a hat but the High Courts must exercise great care, caution and circumspection in that regard or else the very object of the Act would be defeated.
(3.) TWO out of the three points urged by Mr. Dutta would involve adjudication of disputed questions of fact in view of the submission of Ms. Doshi, learned Advocate for the respondents 1 and 2. She has produced evidence to demonstrate that the respondents 3 and 4, by their letter dated May 13, 2000, had clearly expressed intention to create equitable mortgage in favour of the Bank in respect of, inter alia, Plot No. 304 for sanction of credit facilities in favour of the petitioner No. 1.;