$~104 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 5452/2024 & CM APPL. 22524-22525/2024 ZAHID HUSSAIN ..... Petitioner Through: Mr. M. Sufian Siddiqui, Mr. Rakesh Bhugra, Md. Niyazuddin and Ms.

Alya Veronica, Advocates.

versus KOTAK MAHINDRA BANK LTD. ..... Respondent Through: Mr. Ravi Gupta, Sr. Advocate with Ms. M. Dalta, Ms. Sanya Lamba and Ms. Muskaan Mehra, Advocates.

% Date of Decision: 16^th April, 2024 CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

J U D G M E N T

MINI PUSHKARNA, J: (ORAL)

CM APPL. 22525/2024 (For Exemption)

1. Exemption allowed, subject to just exceptions.

2. Accordingly, the application is disposed of.

W.P.(C) 5452/2024 & CM APPL. 22524/2024

3. The present petition has been filed with prayer for quashing the notice dated 01^st April, 2024 issued by the receiver.

4. Learned counsel appearing for the petitioner submits that the notice has been issued by the receiver in the name of the petitioner’s deceased mother namely late Ms. Tajunnisa, after the date of her death on 16^th October, 2020, apropos taking physical possession of her mortgaged Signature Not Verified Digitally Signed W.P.(C) 5452/2024 Page 1 of 12 residential property viz. B-4/17, Safdarjung Enclave, New Delhi-110029.

5. Learned counsel submits that no notice can be issued against a dead person and on this account he relies upon the judgment passed by the Madras High Court in the case of Sheeba Philominal Merlin and Ors. Versus The Repariates Co-op Finance and Development Bank Ltd. (Govt. of India Enterprise) and Ors., 2010 SCC OnLine Mad 4286. Learned counsel has relied upon the following paragraph:

“26. It is the case of the petitioners that no notice under Section 13(2) and 13(4) was served on the deceased S. Jayakumar or the petitioners being the legal representatives of the S. Jayakumar, as guarantor for the loan. In paragraph '6' of the original counter affidavit filed by the respondent bank, it is stated that they proceeded as per the provisions of the Sarfaesi Act by issuing the demand notice dated 02-01-2008, Possession notice dated 26-04-2008 and the auction notice dated 18-06- 2008. In paragraph '4' of the additional counter affidavit of the bank filed on 09-11-2009, the respondent bank stated that it was unable to find out the whereabouts of S. Jayakumar in spite of best efforts taken by the Recovery Officers of the Bank and that the said Authorized Officer issued demand notice dated 02-01-2008. In spite of the notice issued as per the Act, no reply/representation/objection had been received by the Bank.”

6. By referring to the aforesaid judgment, learned counsel appearing for the petitioner submits that in the present case, since notice has been issued in the name of a dead person, the said notice is non-est and not maintainable.

7. Learned counsel further submits that the legal heirs of the deceased, namely, the petitioner and three other legal heirs, have not been served any notice. It is submitted that the petitioner is staying in the property in question, and the right of the petitioner to abode cannot be taken away by a non-est notice.

8. Learned counsel further submits that the petition before this Court is maintainable, by relying upon the recent judgment dated 10^th April, 2024 of the Supreme Court in SLP (C) No. 8867/2022 titled as PHR Invent Signature Not Verified Digitally Signed W.P.(C) 5452/2024 Page 2 of 12 Educational Society Versus UCO Bank and Ors. Learned counsel has relied upon Para 29 of the said judgment, which reads as under: “29. It could thus clearly be seen that the Court has carved out certain exceptions when a petition under Article 226 of the Constitution could be entertained in spite of availability of an alternative remedy. Some of them are thus:

(i) where the statutory authority has not acted in accordance with the provisions of the enactment in question;

(ii) it has acted in defiance of the fundamental principles of judicial procedure;

(iii) it has resorted to invoke the provisions which are repealed; and (iv) when