Wrong mentioning of a provision in a notice does not make the notice bad if it is referable to a known source.

This order will dispose of MAT 1364 of 2007 and the Reference made in W.P. 5472 (W) 2007.

2. We have heard the learned counsel for the parties. This matter has been adjourned on a number of occasions at the request of the learned counsel for the appellant. It was submitted before us that the appellant is in the process of settling the matter with the Bank. He had actually submitted a number of offers which had not been accepted by the Bank. He was, therefore, trying to increase the offer which may be acceptable to the bank.

3. On the last occasion when the matter appeared, it was specifically submitted by the learned counsel that time may be granted till Monday so that one more effort could be made to persuade the bank to accept the amount offered by the appellant in full and final settlement of the account. Learned counsel for the Bank is, however, adamant that at no stage the Bank had expressed its willingness to accept any of the offers made by the appellant.

4. We may now proceed to decide the appeal.

5. The appellant has filed the writ petition challenging the notice issued by the Bank dated 9-9-2006 on the ground that it had been issued under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (Second) Ordinance. 2002 calling upon the petitioner to pay the debt by 60 days from the date of issue of the notice failing which action under Section 13(4) of the said Act will be taken against the petitioner.

6. It is claimed that the petitioner had submitted a reply to the notice through a letter dated 27-4-2006 and it was pointed out that the notice was unsustainable in law, as the 2002 Ordinance was repealed with effect from 21-6-2002 on coming into force of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the said Act).

7. Since no valid notice has been issued under Section 13(2) of the said Act, the follow up action under Section 13(4) of the said Act was also vitiated. The learned single Judge, by the order dated 20-2-2006. dismissed the writ petition with the observations that from the contents of the notice dated 9-9-2006, it is quite clear that the authority intended to issue the notice under Section 13(2) of the said Act.

8. It was also noticed that in the Representation dated 27-10-2006, the writ petitioner/appellant had not taken the ground that the notice was issued in terms of provisions of the ordinance and not of the Act, he had raised only a vague and general plea that the notice was illegal and not maintainable in law.

9. The trial Court also notices that the appellant had dealt with the notice on merits. It is, therefore, clear that he fully understood the purport of the notice. He also understood that it was actually issued in terms of the provisions of Section 13(2) of the Act. The Trial Court observes that the Representation having been dismissed on merits, the only remedy available to the writ petitioner was to move the Debt Recovery Tribunal under Section 17 of the Act.

10. The Trial Court came to the conclusion that mere reference made to the wrong provision in a notice does not make the notice bad. The trial Court also holds that wrong mentioning of the provisions has not caused any prejudice to the writ petitioner / appellant.

11. Mr. Bhattacharya, learned counsel for the appellant, has again reiterated before us that the notice under Section 13(2) of the Act having not been issued, in accordance with law, the action of the respondent Bank under Section 13(4) of the said Act is vitiated.

12. We are unable to accept the aforesaid submission of the learned counsel. It is too well established that mere mentioning of a wrong provision would not vitiate the action of the authority provided that it is referable to a known source. Even mentioning of a wrong provision or omission to mention the provision that contains the source of power would not render an order nul