The main legal point established in the judgment is the requirement of compliance with the provisions of the Securitization Act, including the necessity of providing notices under Section 13(4) and the qualification of the party as a financial institution and secured creditor.

Judgement

A.K. GANGULY, C.J. :- This writ petition has been filed challenging the action taken by the opposite parties in dispossessing the petitioner from his residential house at village Uttara Sasan, P. O. Kausalyaganga, P. S. Pipili, District Puri. He alleges that he has been dispossessed from his house and that possession was suppressed by the Collector and the Superintendent of Police, Puri, opposite party Nos. 2 and 3 respectively. It is further alleged that the dispossession of the petitioner was at the instance of opposite party Nos. 6 and 7 on the basis of notice issued under Section 13(2) of the Securitization Act. In the writ petition only notice under Section 13(2) of the Securitization Act has been disclosed and the grievance of the petitioner is that no notice under Section 13(4) of the Securitization Act was given by opposite party Nos. 6 and 7. On the other hand it is submitted on behalf of opposite party Nos. 6 and 7 that the notice under Section 13(4) of the Securitization Act has been given to the petitioner. On perusal of the purported notice dated 1-10-2005, this Court does not find that any separate notice under Section 13(4) of the Securitization Act has been given.

2. Learned counsel for opposite party Nos. 6 and 7 submits that no notice under Section 13(4) of the Securitization Act is required and as such no separate notice was given under Section 13(4) of the said Act.

3. It is difficult for us to accept the said contention. It is well settled that notice under Section 13(4) is a must before the financial institution takes any of the measures specified in the said sub-section.

4. This becomes all the more necessary in view of right of appeal given under Section 17. Unless notice under

Section 13(4) is given, the right of appeal which is given under Section 17 of the Statute becomes illusory. This

omission, according to the learned counsel for the petitioner, is a fundamental one and we find that there is a lot

of substance in that.

5. It has been urged that opposite party Nos. 6 and 7, namely, Bijayananda Mishra and Sanjaya Sinha, have styled themselves as Authorised Representative and Executive Director of Maharsi Housing Development Finance Corporation Ltd.

6. In the counter affidavit, which has been filed by opposite party No. 6, reference has been made to a notification dated 10-11 -2003 issued by the Ministry of Finance (Department of Economic Affairs) (Banking Division). In the said notification some institutions have been notified in exercise of powers conferred under sub-clause (iv) of clause (m) of sub-section (1) of Section 2 of the Securitization Act. In the said notification Maharshi Housing Development Finance Corporation Ltd., New Delhi has been notified as a financial institution on and from 10th November, 2003. This fact is not disputed. It is not the case of opposite party No. 6 that prior to 10th November, 2003 the said institution has been notified under the said Act as a financial institution.

7. The agreements in respect of the action which has been taken under Section 13 of the Securitization Act have been disclosed in the counter affidavit of opposite party No. 6 from which it appears that the agreements are dated 26-5-2001 and 13-2-2002. The first agreement was for loan of an amount of Pis. 1 lakh and the second agreement was for an amount of Rs. 2 lakhs. The entire action under Section 13 has been initiated by opposite party Nos. 6 and 7 against the petitioner in order to realize loan amount given to the petitioner under the aforesaid two agreements.

8. Now the question is whether by virtue of the notification dated 10-11-2003 issued by the Central Government notifying it to be a financial institution, it can initiate such proceeding under Section 13 of the Securitization Act in respect of those two loan agreements of 2001 and 2002.

9. This question has been answered by the statute itself.

Section 13(1) and 13(2) of the said Act are set out below :

"13. Enforcement of security interest.-

(