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2005 DIGILAW 9 (GUJ)

Ivee Injectaa Ltd v. Junagadh Vibhagiya Nagrik Sahakari Bank Ltd

2005-01-11

D.H.WAGHELA, M.S.SHAH

body2005
M. S. SHAH, J. ( 1 ) THESE appeals are directed against the common judgment dated 3. 11. 2004 of the learned Single Judge dismissing the petitions filed under Article 226 of the Constitution challenging the notices issued by the respondent-bank under Section 13 (2) of the securitisation and Reconstruction of financial Assets and Enforcement of Security interest Act, 2002 (hereinafter referred to as "the Securitisation Act" ). ( 2 ) THE respondent-bank issued notices dated 10. 3. 2003 to the two appellants herein-sister companies-under Section 13 (2) of the Securitisation Act for recovery of rs. l6,55,886/= (in LPA No. 2 of 2005) and for recovery of Rs. 94,88,693/- (in LPA No. 3 of 2005 ). In the first case, the bank had filed lavad Suit No. 202 of 1992 and in the second case, the bank had filed Lavad Suit Nos. 203 and 204 of 1992. In all the cases, the appellants herein (the defendants in the suits) submitted consent pursis dated 5. 31. 1992 on the basis of which the Board of nominees passed decrees dated 26. 11. 1992 in all the three suits. The petitioners made some payments but did not pay all the amounts as per the consent decrees and, therefore, the respondent-bank filed execution application nos,37, 38 and 39 of 1998. After giving credit for the amounts deposited upto the year 2002, the respondent-bank issued the impugned notices dated 10. 3. 2003 under section 13 (2) of the Securitisation Act. The appellants submitted their reply dated 16. 9. 2003 and reply dated 13. 8. 2003 which came to be rejected by the respondent-bank and communicated to the appellants by banks letters dated 8. 10. 2003 and 3. 9. 2003 respectively. Hence, the appellants filed the petitions before the learned Single Judge. ( 3 ) THE only contention raised before the learned Single Judge was that the impugned notices under Section 13 (2) of the securitisation Act were issued beyond the period of limitation and, therefore, null and void ab initio. After hearing the learned counsel for the parties, the learned Single judge held that the consent decrees were passed by the Board of Nominees on 26. 11. 1992 in all the three suits and the impugned notices came to be issued on 10. 3. After hearing the learned counsel for the parties, the learned Single judge held that the consent decrees were passed by the Board of Nominees on 26. 11. 1992 in all the three suits and the impugned notices came to be issued on 10. 3. 2003, hence they were issued within the period of 12 years as prescribed by Article 62 of the Limitation Act, 1963 read with section 1. 2 thereof. The original petitioners are, therefore, in appeal before us. ( 4 ) MR. H. J. Nanavati, learned counsel for the appellants, submitted that the mortgage deeds were executed by the appellants in favour of the respondent-bank on 5/9. 6. 1987 and the period of 12 years as prescribed under Article 62 of the Limitation act would begin to run from the said dater i. e. from 5/9. 6. 1987. It is submitted that the period of 12 years expired in the year 1999 and since the impugned notices have been issued thereafter in March 2003r they are barred by the provisions of Section 36 of the securitisation Act. ( 5 ) SEC/ion 36 of the Securitisation Act reads as under:-"36. No secured creditor shall be entitled to take all or any of the measures under sub-section (4) of Section 13, unless his claim in respect of the financial asset is made with in the period of limitation prescribed under the Limitation Act, 1963. "