A notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, issued by a secured creditor's advocate on its instructions, is valid.

AMITAVA ROY, J.

1. Appalled by the rejection of his impugnment of the notice dated 10-1-2012 issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the Act) thereby restraining him from transferring/assigning/ surrendering/selling etc. the secured assets detailed in Annexure-A thereto, the appellant seeks panacean intervention of this Court in this appeal.

2. We have heard Mr. Rajendra Prasad, learned counsel for the appellant and Mr. Ajeet Bhandari, learned counsel for the respondents.

3. For the issues raised herein, elaboration of the textual facts is inessential. Suffice it to mention that the appellant had applied for home loan from the respondent-Bank to the tune of Rs. 11,00,000/-, in response whereto, the latter had sanctioned a financial accommodation of Rs. 9,50,000/-. Construing his account to be non-performing asset, notice under Section 13(2), as above, was caused to be served on him by the respondent-Bank through its advocate, the respondent No.4 herein. Questioning the validity thereof, he sought to invoke writ jurisdiction of this Court contending that the same being neither by the secured creditor nor its authorized officer, as envisaged in Section 13(2) read with Rule 2(b) of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the Rules) it was inoperative and null and void. The respondent-Bank in its affidavit, while questioning the maintainability of the writ proceedings on the ground of availability of alternative remedy to the appellant, endorsed the validity of the notice issued by its advocate on its instructions.

4. The learned single Judge sustained the plea of the respondent-Bank on an interpretation of the relevant provisions of the Act and the Rules and placing reliance chiefly on the decision of the Calcutta High Court in Asset Reconstruction Company India Ltd. v. M/s. Amit Ventures Private Ltd. & Ors., AIR 2007 Calcutta 49.

5. Mr. Rajendra Prasad, learned counsel for the appellant, with particular reference to Section 13(2) & (12) of the Act, has urged that as admittedly the impugned notice had been issued not by the secured creditor but by the learned counsel for the respondent-Bank, it is not in compliance of the mandate of the provisions of the Act and ought to be adjudged as non est in law. Drawing the attention of this Court to Section 38 of the Act conferring the rule making power on the Central Government as well as Rule 2(b) of the Rules defining demand notice to mean one to be issued in writing by a secured creditor or authorized officer to the borrower pursuant to Section 13(2) of the Act, the learned counsel has insisted that the impugned notice which constitutes an action by the respondent-Bank under Section 13(2), is apparently illegal and unauthorized and thus, the impugned judgment and order ought to be interfered with. According to him, reliance was wrongly placed by the learned single Judge on the decision of the Calcutta High Court in Asset Reconstruction Company India Ltd. (supra). To reinforce his contentions, Mr. Rajendra Prasad has placed reliance on the decision of the Hon’ble Apex Court in M/s. Transcore v. Union of India & Anr., AIR 2007 SC 712.

6. In reply, Mr. Ajeet Bhandari, learned counsel for the respondents has argued that not only the notice under Section 13(2) of the Act issued by the learned counsel for the respondent-Bank on its instructions based on a decision to that effect, is valid being in sufficient conformance of the relevant prescriptions of the Act and the Rules, the special leave petition against the pronouncement in Asset Reconstruction Company India Ltd. (AIR 2007 Cal 49) (supra) having been dismissed by the Hon’ble Apex Court, the law laid down therein has become final.

7. We have cautiously considered the pleaded facts and also the competing arguments.

8. Admittedly, the notice impugned had been issued by the learne