Calcutta High Court (Appellete Side)
Satyajit Ghosh vs Canara Bank And Others on 24 November, 2023
24th November,
2023
(AK)
11
W.P.A. 22585 of 2022
Satyajit Ghosh
Vs.
Canara Bank and others
Mr. Ganesh Ch. Patra
...for the petitioner.
Ms. Sreemoyee Mitra
...for the Canara Bank.
1. The matter had been moved on October 9, 2023. An
interim order had been granted on the submission of the
petitioner that one Smt. Bani Ghosh, who died on August
3, 2015, was already deceased when the demand notice
under the SARFAESI Act was issued to her.
2. Learned counsel for the petitioner, however, despite
repeated query of court, fails to produce any copy of the
death certificate of Bani Ghosh or the demand notice on
her.
3. On the contrary, learned counsel for the Bank
submits that the borrower was a company of which the
petitioner and his father were Directors and the
petitioner's mother Smt. Bani Ghosh was a personal
guarantor.
4. It is submitted that although the Bank initiated
proceedings under the SARFAESI Act, the same was not
merely against Bani Ghosh alone but notices were duly
2
issued to the borrower-company as well as the petitioner
and the other Director.
5. Learned counsel submits that the demise of Smt.
Bani Ghosh, the mother of the petitioner and the
guarantor and the petitioner's father, who was the other
Director, was never informed to the Bank.
6. However, it is submitted that nothing hinges on the
issue since the petitioner and the borrower company were
served duly with notices, upon which SARFAESI
proceedings were initiated and an application of the Bank
under Section 14 of the said Act was initiated and is now
pending.
7. Learned counsel for the Bank cites two unreported
judgments of the Delhi High Court and the Telangana
High Court in support of the proposition that the purpose
of issuance of fresh demand notice under Section 13(2) of
the SARFAESI Act is only to enable the legal heirs of the
deceased borrower/guarantor to clear the outstanding
dues within stipulated sixty days.
8. In any event, in the present case, despite assuming
that the personal guarantor has died in the meantime
along with one of the Directors, the borrower company
itself was served with a notice, as was the petitioner, who
is also one of the co-Directors.
9. Hence, the petitioner cannot be absolved of the
liability of the debt merely on the ground of demise of the
3
personal guarantor/mother of the petitioner and the
other Director/father of the petitioner.
10. In any event, the demise of the said Bani Ghosh
has not been established by producing any valid death
certificate as well.
11. Thus, there is no occasion to continue the interim
order granted at the inception.
12. Moreover, the petitioner, although finding time to
prefer the writ petition, has not yet preferred any
application before the Debts Recovery Tribunal which is
the appropriate forum for deciding the issues involved.
13. It was recorded in the order dated October 9, 2023
that the petitioner was granted liberty to approach the
concerned Debts Recovery Tribunal under Section 17 of
the SARFAESI Act in the meantime and obtain
appropriate interim orders; however, no such effort has
been made by the petitioner till date.
14. Hence, there is no justification in keeping the writ
petition pending further or interfering with the impugned
action of the respondents.
15. Accordingly, WPA 22585 of 2022 is dismissed on
contest without any order as to costs.
Urgent photostat copies of this order, if applied for,
be given to the parties upon compliance of all requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
