9911796707
TMI Blog2005 (6) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... k of India, Bhubaneswar Branch to one M/s. Utkal Udyog and the petitioner was a guarantor to the said loan. It also appears that in addition to the letter of guarantee executed by the petitioner in favour of the said Bank, the petitioner also created equitable mortgage over her immovable properties in favour of the said Bank. The said mortgage was offered as a co-lateral security for the loan advanced to M/s. Utkal Udyog. It also further appears from Annexure-1 that the said loan was not repaid by the Principal Debtor and on the date of receipt of the notice under Annexure-1, i.e., on 5-7-2004, the balance outstand ing in the aforesaid two loan accounts was Rs. 94,54,145.30. 2. Mr. S.S. Das, Learned Counsel for the petitioner submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raws the attention of the Court to the provision of section 36 of the Act which reads as follows : "36 Limitation. No secured creditor shall be entitled to take all or any of the measures under sub-section (4) of section 13, unless his claim in respect of the financial asset is made within the period of limitation prescribed under the Limitation Act, 1963." Relying on the above provision, Mr. Das submits that since it is clear from the notice under Annexure-1 that the loan was granted and the letter of guarantee was executed on 13-7-1981, applying provision of the Limitation Act, 1963, the opposite party-Bank could not have issued the impugned notice under section 13(2) of the Act which ultimately would culminate in an action under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffered as co-lateral security by way of mortgage for a loan advanced. The period prescribed under the said article is twelve years. Admittedly in this case, the loan having been advanced in the year, 1981, the period prescribed for enforcing the mortgage created by the petitioner as guarantor to the loan, expires some time in the year, 1993. Hence, we find that the action of opposite party-Bank in issuing notice to the petitioner under section 13(2) of the Act is clearly barred by time and such action is prohibited under section 36 of the Act. 7. We, therefore, have no hesitation in accepting the contention of Mr. Das that the notice issued under section 13(2) of the Act vide Annexure-1 to the Writ Application was without jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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