Point of Law: Debt Recovery and monetary Laws - Defaulted in payment of instalments in respect of the overdraft facility - Section 13(2) of SARFAESI Act and measures taken under Section 13(4) thereof were only necessary corollaries consequential upon such classification as NPA within the contemplation of Section 13 of 2002 Act.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. A sanction was granted for credit facility in favour of the petitioner for an amount of Rs. 200 lakh by the respondent no. 1-Bank. On November 22, 2018, there was a modification/ renewal of the Sanction Letter dated June 8, 2010, which, inter-alia, scaled down the existing limit of Rs. 9.90 crore to a proposed limit of Rs. 6.25 crore.

2. On February 23, 2019, a letter was issued by the Bank for modification of the Sanction Letter dated November 22, 2018 for the limited purpose of including a corporate guarantee given by the Metro Niketan Private Limited.

3. On September 19, 2020, the Bank issued to the petitioner and to its guaranteers and mortgagors/corporate guarantors notices under Section 13(2) of the SARFAESI Act, 2002, to which the borrower issued an objection under Section 13(3A) on November 20, 2020. Reply was given by the Bank to the said objection on December 2, 2020.

4. On January 13, 2021, a possession notice under Rule 8(1) of the Security Interest (Enforcement) Rules, 2020, read with Section 13(4) of the SARFAESI Act, was issued by the respondent no. 1-Bank for taking symbolic possession of the secured property.

5. On January 14, 2021, the Bank issued a notice under Section 13(4) of the SARFAESI Act and on January 15, 2021, the respondent no. 1- Bank issued an e-mail to the petitioners intimating that the loan account of the petitioners was then overdue for the past 91 days.

6. Learned counsel appearing for the respondent-Bank takes a preliminary objection as to maintainability of the writ petition against the actions taken by the Bank under Sections 13(2) and 13(4) of the SARFAESI Act, in view of an equally efficacious alternative remedy being available under Section 17 of the said Act.

7. In support of such contention, counsel cites the following judgments:

(i) United Bank of India vs. Satyawati Tondon and Others, (2010) 8 SCC 110

(ii) Kanaiyalal Lalachand Sachdev vs. State of Maharashtra, AIR 2011 SCW 1194

(iii) Authorised Officer, State Bank of Travancore vs. Mathew K.C. (2018) 3 SCC 85

(iv) Bishnu Bikash Sarkar and Another vs. ICICI Home Finance Company Limited and Others, M.A.T. No. 128 of 2019, dated 6.2.2019

(v) ICICI Bank vs. Umakanta, (2019) 13 SCC 497

(vi) Hiranmoy Bhattacharya in Bansal Enterprises vs. Bank of Baroda, W.P.A. No. 11360 of 2020, dated 14.01.2021

8. The respondent-Bank submits that the unreported judgment dated January 14, 2021 passed by a co-ordinate Bench in WPA No. 11360 of 2020 was challenged in MAT No. 68 of 2021 (Bansal Enterprises vs. Bank of Baroda). A Division Bench of this Court, vide order dated January 21, 2021, affirmed the decision of the learned Single Judge. Upon a challenge being preferred before the Supreme Court against the Division Bench judgment by way of Special Leave to Appeal (C) No. 2695 of 2021, which was dismissed by the Supreme Court by an order dated February 17, 2021.

9. It is further submitted, on maintainability, that the writ petition is premature insofar as the same challenges the notice under Section 13(2) of the SARFAESI Act. On such contention, the Bank relies on D. Krishnan and Others vs. The Branch Manager, The Federal Bank Limited and Another, 2017 SCC Online Mad. 24346 and M/s. Sigma Generators Private Limited and Another vs. Oriental Bank of Commerce and Others, 2014 SCC Online 7198.

10. While addressing the question of maintainability, learned counsel appearing for the petitioners contends that the action of the Bank and its authorized officer in declaring the account of the petitioner as Non- Performing Asset (NPA) on February 24, 2019 is the plinth of the challenge in the present writ petition on the ground that the same is contrary to the Master Circular issued by the Reserve Bank of India on July 1, 2015 containing the Prudential Norms of Income Recognition and Asset Classification and Provisioning Pertaining to Advances. It is argued that the modification dated February 23, 2019 amounted to a restructuring of the a