TMI Blog2012 (9) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him exercising the right granted by Section 13(3A) of the Act. It is claimed in the writ petition that without considering and disposing of the said representations, the Bank issued a notice conveying to the general public that it had taken possession of the secured asset. 2. This writ petition was presented on 21st August, 2012 raising the grievance that without disposing of the representations, possession could not be taken. It was first heard on 3rd September, 2012. Mr. Jha, learned Advocate appearing for the Bank sought for time to obtain instructions as to whether the petitioner's representations were disposed of or not. Considering his prayer, hearing of this writ petition was adjourned till 10th September, 2012. Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that to frustrate the writ petition, the response was despatched after the writ petition came to be presented before this Court. Strange enough, the response did not bear any official memo number. Mr. Jha again failed to explain why the response did not bear such number. The Bank is a nationalised Bank and it is difficult to believe that letters would be issued by its authorised officer without maintaining any official memo number. If indeed the response dated 7th May, 2012 had been issued, the same could have been produced before the Court on 3rd September, 2012, when it was first heard. To the mind of this Court, the response was ante dated to highlight that the petitioner's representations had been considered long before and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elegating the petitioner to the remedy available under Section 17 of the Act. 9. The decision in Satyawati Tondon (supra) has been considered. There, the Allahabad High Court had entertained the writ petition and granted ad interim relief to a guarantor on the ground that the secured creditor had not taken any action against the borrower. In such fact situation, the Supreme Court held that having regard to the remedy available under Section 17 of the Act, the High Court ought not to have entertained the writ petition since the secured creditor was entitled to proceed against the guarantor also. 10. While allowing the appeal and setting aside the order impugned, the Supreme Court held as follows: 44. While expressing the aforesaid v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to decide the representation/objection that it might have received from the borrower under Section 13(3A) of the Act. Disposal of the representation/objection is, therefore, a condition precedent before measures in terms of Section 13(4) of the Act could be taken. Measures under Section 13(4) of the Act cannot therefore be taken unless there is existence of the jurisdictional fact. The jurisdictional facts would include issuance of a demand notice under Section 13(2) of the Act and disposal of representation/objection, if received from 6 the borrower, in terms of provisions contained in Section 13(3A) of the Act. Since in the instant case the possession notice was issued on 20th June, 2012 before even the representations under Section 13( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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