A notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act can be issued by an advocate or a solicitor on behalf of the secured creditor or its authorized officer.

BHASKAR BHATTACHARYA, J. :- This Mandamus Appeal is at the instance of the respondent in a writ application and is directed against order dated September 8, 2006 passed by a learned single Judge in W.P. No. 20166 (W) of 2006 thereby rejecting the writ application on the sole ground that a notice issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred to as the Act) by a solicitor on the instruction of the creditor was invalid.

2. Being dissatisfied, the respondent has come up with the present Mandamus Appeal.

3. Mr. Mitra, the learned advocate appearing on behalf of the appellant has vigorously contended before us that the learned single Judge committed a gross error of law in holding that the notice in terms of Section 13(2) of the Act is required to be given by the secured-creditor or its authorised officer himself, but in no case, by their learned advocate on the basis of the instruction. According to Mr. Mitra, there is no prohibition either under the Act or under the Rules framed thereunder in giving a notice in terms of Section 13(2) of the Act by an advocate or a solicitor on behalf of his client.

4. Mr. Roy, the learned advocate appearing on behalf of the respondent/writ-petitioner has, however, opposed the aforesaid contention raised by Mr. Mitra and has contended that the Act read with the Rules framed thereunder unmistakably point out that such notice can only be issued by the secured-creditor or its authorised officer but none else on their behalf. He, therefore, prays for dismissal of the appeal.

5. Therefore, the only question that arises for determination in this Mandamus Appeal is whether the notice under Section 13(2) of the Act can be issued by a learned advocate on behalf of the secured-creditor or its authorised officer as mentioned in the Act.

6. To appreciate the aforesaid question, it will be profitable to refer to Section 13 of the Act and Rule 2(a) and Rule 2(b) of the Rules framed thereunder and those are quoted below :-

"Section 13. Enforcement of security interest .- (1) Notwithstanding anything contained in Section 69 or Section 69-A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the Court or tribunal, by such creditor in accordance with the provisions of this Act.

(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-sec. (4).

(3) The notice referred to in sub-section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower.

(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely :-

(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;

(b) take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realise the secured asset;

(c) appoint any person (hereinafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;

(d) require at any time by notice in writing,