Debangsu Basak, J. - (1.) Possession Notice dated November 11, 2018 issued by the bank exercising jurisdiction under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI), 2002 is under challenge in the present writ petition.
(2.) The writ petitioners are heirs and legal representatives of a guarantor.
(3.) Learned Advocate appearing on behalf of the petitioners submits that, the father of the petitioners was misled by the private respondent in mortgaging an immovable property for a loan guaranteed by the bank in favour of the private respondent. The bank is not proceeding against the private respondent. The bank has other secured assets to recover its claim. The bank is seeking to take possession of the immovable property belonging to the petitioners. The petitioners are entitled to notice under the provisions of the Act of 2002 after the death of the father of the petitioners. The secured creditor should proceed de novo against the heirs and legal representatives of the deceased guarantor. Since the bank did not do so, the impugned action of the bank in taking possession of the property belonging to the petitioners is in breach of principles of natural justice and the provisions of the Act of 2002. The bank is obliged to adhere to the principles of natural justice while exercising powers under the Act of 2002. He relies upon (Commissioner of Income Tax and Ors. Vs. Chhabil Dass Agarwal, 2014 1 SCC 603) and (Authorized Officer, State Bank of Travancore and Anr. Vs. Mathew K.C., 2018 3 SCC 85) and submits that, the existence of statutory alternative remedy is not a complete bar in exercising of jurisdiction by the Writ Court. In the facts of the present case, although a proceeding under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 is pending before the Debts Recovery Tribunal and a proceeding under Section 17 of the Act of 2002 is disposed of, the present writ petition is maintainable.;