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2006 DIGILAW 582 (CAL)

AMIT VENTURES PVT. LTD. v. ASSET RECONSTRUCTION CO. INDIA LTD.

2006-09-08

PRANAB KUMAR CHATTOPADHYAY

body2006
Pranab Kumar Chattopadhyay ( 1 ) THE petitioner herein has challenged the validity and/or legality of the notice dated June 6,2006 issued by the Solicitor of the secured creditor on the ground that the said Solicitor has no right and/or authority and/or competency to issue such notice under Section 32 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. ( 2 ) MR. Mitra, learned Advocate, appearing on behalf of the respondent no. 1 submits that the Solicitor, being the authorized representative of the secured creditor, is entitled to serve such notice. ( 3 ) IT appears from sub-Section 12 of Section 13 of the aforesaid sarfaesi Act, 2002, that the rights of a secured creditor should be exercised by its authorized officers. Section 13 (12) of the SARFAESI Act is quoted hereunder:"13 (12 ). The rights of a secured creditor under this Act may be exercised by one or more of his officers authorised in this behalf in such manner as may be prescribed. " ( 4 ) RULE 2 (a) of the Security Interest (Enforcement) Rules, 2002 has defined the authorised officer as hereunder:"2 (a) 'authorised Officer' means an officer not less than a chief manager of a public sector bank or equivalent, as specified by the Board of Directors or Board of Trustees of the secured creditor or any other person or authority exercising powers of superintendence, direction and control of the business or affairs of the secured creditor, as the case may be, to exercise the rights of a secured creditor under the Ordinance. " ( 5 ) IN view of the aforesaid provisions of law, the rights of a secured creditor under the said SARFAESI Act, 2002 cannot be exercised by the Solicitor of the said secured creditor as the said Solicitor cannot be treated as the authorised officer of the secured creditor and, therefore, the impugned notice dated 6th June, 2006, issued by the Solicitor cannot be sustained in the eye of law and the same is, therefore, quashed. ( 6 ) HOWEVER, quashing of the aforesaid notice will not prevent the secured creditor from taking necessary steps for issuing appropriate notice in future strictly in accordance with law. ( 7 ) THIS writ petition stands allowed. There will, however, be no order as to costs.