BASUDEB GHOSH vs UNION OF INDIA AND ORS.

IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
APPELLATE SIDE
Present :
The Hon’ble Justice Partha Sarathi Chatterjee

WPA 26825 of 2026
Basudeb Ghosh
Vs.
Union of India & Ors.

For the petitioner : Mr. Sardar Amjad Ali, Sr. Adv.,
Mr. D K Samanta,
Ms. Biswapriya Samanta.

For respondent nos. 3 & 4 : Mr. Kaushik Modak,
Mr. Mohit Gupta,
Ms. Aditi Ram,
Ms. Mousumi Pal.

Heard on : 25.09.2026
Judgment on : 25.09.2026
Partha Sarathi Chatterjee, J.:-
1. In this second round of litigation, the petitioner has approached this Court by filing
the present writ petition challenging the legality and/or tenability of the notice styled as a
“vacation notice” dated 15th September, 2026, issued by the learned Advocate
Commissioner deputed by the learned Chief Judicial Magistrate, Purba Bardhaman, for

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taking possession of the secured asset in implementation of the order dated 17th
December, 2025 passed by the learned Chief Judicial Magistrate under Section 14 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (for short, the “SARFAESI Act”).
2. Mr. Ali, learned Senior Advocate appearing for the petitioner, submits that the
proprietor of M/s. Rina Textiles had availed of a loan facility by creating an equitable
mortgage in respect of a parcel of land measuring 0.005 acres, together with the showroom
standing thereon. However, alleging default on the part of the borrower in repayment of
the loan, the respondent-Bank initiated proceedings under the SARFAESI Act. He submits
that, ultimately, after issuance of the notice under Section 13(4) of the said Act, the Bank
invoked the provisions of Section 14 thereof and is now proceeding to take possession of
the secured asset.
3. Mr. Ali, however, submits that the secured asset forms part of a joint property and
that a partition suit in respect thereof is presently pending before the competent civil
court. He submits that, in the said partition suit, the learned court has passed an interim
order directing the parties to maintain status quo with regard to the nature, character and
possession of the suit property. According to him, in view of such subsisting order, the
respondent-Bank cannot proceed to take possession of any portion of the property which is
the subject matter of the pending suit. In such circumstances, he submits that the vacation
notice issued by the learned Advocate Commissioner is unsustainable in law. He further
submits that, if possession of the property referred to in the said notice is taken, the
petitioner would suffer serious prejudice. Accordingly, according to him, immediate
intervention by this Court is warranted.
4. Mr. Modak, learned Advocate appearing for respondent nos. 3 and 4, submits that
Smt. Juliet Ghosh is the proprietor of M/s. Rina Textiles and is also the wife of the
petitioner. He submits that the mortgage deed was executed by Guruprasad Ghosh, since

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deceased, the father of the petitioner, in respect of the secured asset. The petitioner,
Basudeb Ghosh, stood as a personal guarantor to the loan facility, while Rina Ghosh,
Arindam Ghosh and Basudeb Ghosh are the legal heirs of the mortgagor, namely,
Guruprasad Ghosh.
5. Mr. Modak submits that, upon the death of Guruprasad Ghosh, the assets left by
him devolved upon his legal heirs and, correspondingly, the liabilities attaching to his
estate also devolved upon them, to the extent permissible in law. According to him, the
liability arising out of the mortgage created by Guruprasad Ghosh, since deceased, is
therefore binding upon his legal heirs, including the petitioner. He further submits that the
proceedings under Section 14 of the SARFAESI Act have been initiated pursuant to an
application made by the secured creditor in accordance with law.
6. He submits that, although the auction sale has already been conducted, it cannot be
stated that, merely because the auction sale has been held, the secured creditor is
precluded from taking any further steps for obtaining physical possession of the secured
asset by invoking Section 14 of the 2002 Act. In support of his contention, he places
reliance upon a decision reported in 2018 (3) JT SC 634 ( ITC Ltd. v. Blue Coast Hotels Ltd.
& Anr. ).
7. He submits that the petitioner has an efficacious alternative remedy before the
appropriate forum; however, without exhausting such remedy, the present writ petition
has been preferred. Therefore, according to him, the present writ petition is not
maintainable.
8. Heard the learned Advocate appearing for the parties and perused the materials on
record.
9. The record reveals that, on 27th September, 2018, a credit facility of Rs. 1.45 crore
was sanctioned in favour of M/s. Rina Textiles. Subsequently, on 2nd June, 2022, a further
credit facility of Rs. 43.5 lakhs was also sanctioned in favour of M/s. Rina Textiles. As

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noticed hereinbefore, the proprietor of the said concern was Smt. Juliet Ghosh, who was
the borrower, and Basudeb Ghosh, the petitioner herein, stood as a guarantor and,
therefore, can be regarded as a borrower within the meaning of Section 2(1)(f) of the Act.
Subsequently, the borrower committed default in repayment of the loan. Accordingly, the
secured creditor initiated proceedings under the SARFAESI Act and issued a notice under
Section 13(2) of the Act on 20th December, 2024. Thereafter, the Bank also issued a notice
under Section 13(4) of the Act on 18th September, 2025 and, ultimately, approached the
learned Chief Judicial Magistrate, Purba Bardhaman, by filing an application under
Section 14 of the Act. The record further reveals that, by an order dated 17th December,
2025, the learned Chief Judicial Magistrate allowed the said application and deputed an
Advocate Commissioner, namely, Arnab Ghosh, to take over physical possession of the
secured asset and hand over the same to the secured creditor.
10. In the meantime, on 18th March, 2025, Aravinda Ghosh, one of the sons of
Guruprasad Ghosh, instituted a partition suit contending that the entire property,
comprising an area of 0.008 acres, is an undivided and joint property. It was, therefore,
contended that the secured creditor cannot take possession of any part or portion of the
said property. The said suit, being Title Suit No. 98 of 2025, is pending before the learned
Civil Judge (Senior Division), 2nd Additional Court at Purba Bardhaman, wherein an
interim order has been passed directing the parties thereto to maintain status quo with
regard to the nature and character of the suit property. However, the respondent-Bank,
being the secured creditor, is not a party to the said proceeding. Therefore, the interim
order passed therein cannot be said to be binding upon the Bank.
11. The record further reveals that, in the earlier round of litigation, the matter
travelled up to the Hon’ble Division Bench of this Court in MAT 640 of 2026, which was
disposed of by an order dated 20th April, 2026. It would be apposite to reproduce the
operative portion of the said order dated 20th April, 2026, which reads as follows:

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“ Under such circumstances, the action of the bank appears to
be restricted to the 0.005 acres along with the showroom as
described hereinabove, it does not appear that the bank had
proceeded in respect of the excess land as alleged by Mr. Ali. The
bank’s claims shall be restricted only to the schedule as stated
hereinabove.
It is submitted that the sale has taken place but the certificate
is yet to be issued. The bank can proceed with the said formalities.
Accordingly, the appeal and the connected application are
disposed of. The other legal remedies available to the appellant are
kept open. ”
12. Therefore, the Hon’ble Division Bench, in the said order, clarified that the action of
the Bank appeared to be restricted to 0.005 acres of land along with the showroom
standing thereon, as described in the schedule incorporated in the said order. It was
further clarified that the claim of the Bank would remain restricted to the property
described in the said schedule. The Hon’ble Division Bench also observed that the sale had
already taken place and that the sale certificate was required to be issued, whereupon the
Bank could proceed with the necessary formalities in that regard.
13. Needless to state, taking physical possession of the secured asset, which has already
been sold in favour of an auction purchaser, is merely a consequential step in furtherance
of the sale proceedings. There is no difference between the schedule referred to in the
order dated 20th April, 2026 and the schedule referred to in the order passed by the
learned Chief Judicial Magistrate on 17th December, 2025, as well as that mentioned in the
vacation notice issued by the learned Advocate Commissioner on 15th September, 2026.
Therefore, the said notice does not indicate that the secured creditor or the person
nominated by the learned Chief Judicial Magistrate proposes to take possession of any
property in contravention of the order passed either by the Hon’ble Division Bench or by
the learned Chief Judicial Magistrate.

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14. Notably, the expression “any person” employed in Section 17 of the SARFAESI Act
is of wide import and would include any person, including a borrower as defined under
Section 2(1)(f) of the Act, a guarantor, as well as any person who may be aggrieved by any
measure taken by the secured creditor under Section 13(4) or by the competent authority
under Section 14 of the Act. If the petitioner is aggrieved by any such action, he has an
efficacious statutory alternative remedy before the appropriate forum. However, without
exhausting such statutory alternative remedy, the present writ petition has been preferred.
The Hon’ble Supreme Court, in a catena of decisions, has deprecated the practice of
entertaining writ petitions which are preferred primarily with a view to interdicting
recovery proceedings. In this regard, useful reference may be made to the decision
reported in 2024 INSC 297 ( PHR Invent Educational Society v. UCO Bank & Ors. ).
15. Therefore, considering all the aforesaid aspects, I am not inclined to interfere with
the impugned vacation notice. Accordingly, the present writ petition is dismissed.
16. However, this order shall not preclude the petitioner from approaching the
appropriate forum for redressal of his grievance, in accordance with law.



(Partha Sarathi Chatterjee, J.)