- 1 - IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.8306 OF 2009 (1) DEO NARAYAN MAHASETH (2) DINESH KUMAR MAHASETH AND (3) SANJAY KUMAR MAHASETH VERSUS (1) THE CENTRAL BANK OF INDIA (2) THE REGIONAL MANAGER, CBI, DARBHANGA (3) THE BRANCH MANAGER CBI, DARBHANGA (4) DRT, PATNA ----------- 2 21.07.2009. Heard learned counsel for the parties. The petitioners have prayed for quashing the notices dated 18.12.2006 issued by respondent Bank under section 13(2) of the Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 ( in short as the Act) for payment of Rs 12,74861/- from the petitioners treating them to be defaulters. It is alleged by the bank that one Ashok Mahaseth took loan of Rs. 5 lakhs on 16.7.1997 for doing retail and wholesale business of ready made garments. His mother in law one Mantori Devi, wife of petitioner no.1 stood as his guarantor. Petitioner numbers 2 and 3 are sons of Mantori Devi. Petitioners submit that late Mantori Devi never stood guarantor for Ashok Mahaseth rather he in collusion - 2 - with the then bank officials illegally used her name and property for getting loan. It is further submitted that late Mantori Devi could know this only on receipt of bank notice addressed to Ashok Mahaseth dated 11.8.1999. On enquiry she learnt that her name and sale deed had been illegally used for getting loan by her son in law. She filed reply on 8.10.1999 stating therein that she had never become guarantor of the loan in question nor had pleaded any documents in this regard. The bank sent legal notice dated 22.9.2009 to borrower Ashok Mahaseth, the firm M/S Raj Shree Dresses and late Mantori Devi for payment of loan. Mantori Devi sent her reply dated 23.10.1999 denying being a guarantor. Thereafter the bank sent another legal notice dated 9.12.1999 which was also replied by Mantori Devi on 27.12.1999. Before the Bank could take any further steps for recovery of loan from her son in law, Mantori Devi died on 14.1.2002. It is submitted by the petitioners that nothing happened for 5- 6 years and thereafter a notice was issued under section 13(2) of the Act for recovery of financial - 3 - assets which is barred by limitation under section 36 of the SARFAESI Act, 2002 Learned counsel for the Bank controverts the submission of the counsel for the petitioners that late Mantori Devi was not a guarantor and her thumb impression had been taken collusively. He submits that loan document shows that she willfully had become guarantor. He further submits that notice under the Act was issued on 18.12.2006 and petitioners have challenged the same by filing the instant writ petition on 17.7.2009 after two and a half years itself. Section 13(3-A) of the Act provides for filing representation or raising objection, if notice is issued under section 13(2) of the Act. It will be open for the petitioners to make their plea that they would not be liable to pay for the loan, if any incurred by late Mantori Devi as guarantor, as well as to raise the point that Mantori Devi was never a guarantor. So far as point of limitation is concerned, the submissions made will be of no help to them at this stage. Section 34 of the Act states that no secured creditor shall be - 4 - entitled to take recourse under sub section 4 of the section 13 of the Act, subject to limitation. Nothing has been brought on record to show that any order under section 13(4) has been issued. The petitioner has moved for quashing the notice issued under section 13(2) of the Act. In this view of the matter, the plea regarding the limitation is misconceived. However, in view of the facts and circumstances of the case it will be open to the petitioners to file their reply under section 13 (3-A) of the Act before appropriate authority who will dispose of the same in accordance with law. No coercive steps would be taken against the petitioners in O.A. 12/2008, in which they have been arrayed as defendants 4, 5 & 6 for three weeks to take recourse in accordance with law. The writ petition is disposed of with aforesaid observations and directions. Shashi (S. P. Singh, J.)