23.09.2026 sl.5 Ct No. 446 tkm WPA 20791 of 2026 Reform ARC Ltd. & Anr. Vs State of West Bengal & Ors. Mr. Avishek Guha Ms. Arunika Dutta Ms. Sonal Agarwal …for the petitioners Mr. Nilanjan Bhattacharjee Mr. Falguni Bandyopadhyay Ms. Mary Dutta Ms., Riya Ballav …for the State Mr. Mukteswar Maity Ms. Manika Sarkar …for respondent no. 5 1. Fundamentally, the present writ petition has been filed seeking a direction upon the concerned respondent to restore the possession of the secured asset to the petitioners upon implementation of the order dated 9.1.2023 passed by the respondent no. 2 on an application presented before him by the petitioners under section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act). 2. Mr. Guha, learned Advocate appearing for the petitioners, submits that one M/s. Samanta Jewellery, a sole proprietorship concern availed off financial assistance of Rs. 17 lakhs from the Indian Bank and one Shyamal Samanta stood as a guarantor to facilitate the sanction of the loan in favour of the borrower. To avail itself of the said loan an 2 equitable mortgage was created over the property particulars of which have been detailed in the paragraph 3 of the writ petition. He submits that the borrower defaulted in repayment of the loan and accordingly, the loan account was declared as ‘Non Performing Asset’ and subsequently action under SARFAESI Act was initiated in respect of the secured asset. He further submits that a notice under section 13(2) of the Act was issued. However, in the meantime the proprietor expired and accordingly 13(2) notice was issued to the guarantor being the co-borrower and the legal heirs and the said notice was also published in the two leading newspapers namely, Business Standard and Aajkal dated 23.10.2024. Subsequently, a further notice was issued under sub-section 4 of section 13 of the Act and symbolic possession of the secured asset was taken. Thereafter, an application under section 14 of the Act was made before the learned Additional Chief Judicial Magistrate, Sealdah and the said application was allowed by passing an order dated 9.1.2026 and the bailiff of that court was deputed to take physical possession of the secured asset. Pursuant to that order, the physical possession of the property in question, was taken and the same was handed over to the petitioners. However, subsequently, the legal heirs of the proprietor barged into the property and took physical possession of the secured asset forcibly and even assaulted the security personnels deputed by the petitioners in the said property. This incident was brought to the notice 3 of the jurisdictional police by filing a complaint. Based on that complaint, one criminal case was started which has been registered as Sithi PS case no. 39 dated 27.4.2026. He submits that the criminal case will culminate in either conviction or acquittal of the offender. However, the petitioners are interested to get back the possession of the property, in question. He further submits in such circumstances, the respondent no. 2 be directed to take necessary steps so that the possession of the property in question, be restored to the petitioners. He submits that a co-ordinate Bench of this court confronted with the similar question in a writ petition being WPA 13222 of 2024 (PNB Housing Finance Ltd. & Anr. Vs. State). Placing reliance upon a decision in the case of Nashik Merchant Co- operative Bank vs. District Collector, Haina & Ors.) reported in AIR 2023 Bom 181 he submits, the Co- ordinate Bench held that there is no bar for a second application to be filed under section 14 of the 2002 Act and there is no prohibition in appropriate order being passed for expulsion of the parties who have trespassed into the property after the possession of the same taken over by the secured creditor or any reconstruction company pursuant to the order passed under section 14 of the Act. He submits that following the similar position, another co-ordinate Bench of this court in WPA 20235 of 2025 (Asset Reconstruction Co. India Ltd. & Anr. Vs. State) directed the District Magistrate, South 24 Pgs to take appropriate steps 4 to implement its earlier order passed under section 14 of the Act. He submits that applying the proposition laid down in those judgments, a direction may be given to the respondent no. 2 to take steps so that the possession of the property in question is restored to the petitioners. 3. Mr. Maity, learned advocate representing the private respondent namely the guarantor submits that it was within the knowledge of the petitioners of the secured creditor that the borrower was a sole proprietor concern and the proprietor of that concern has expired before issuance of notice under section 13(2) of the 2002 Act. However, the secured creditor did not take any steps to identity the legal heirs of the deceased proprietor and to effect service of notice under section 13(2) of the Act upon them. Instead they have proceeded against a dead person and therefore, all subsequent actions taken pursuant to such notice are null and void. He further submits that the action taken under section 14 of the Act is also illegal. 4. Mr. Bhattacherjee, learned advocate for the State submits that in compliance of the order passed by the learned ACJM, Sealdah possession of the property in question was taken over and the same was handed over to the secured creditor. Following the subsequent event, a specific criminal case has been initiated against the accused person. 5. Heard the learned Advocate appearing for the parties and perused the materials on record. 5 6. As noticed previously, M/s. Samanta Jewellery, a sole proprietorship concern obtained a loan from the Indian Bank creating equitable mortgage over a property being a building located at premises no. 2G-1A Dum Dum (Samar Sarani) Kol-700002 PS-Sithi, ward no. 2, Muja-Donahati and one Syamal Samanta stood as guarantor to facilitate the sanction of land in favour of the borrower. Undisputedly, the borrower expired later on and the notice under section 13(2) of the Act was issued addressing the guarantor to the sole proprietorship concern and also to the deceased proprietor through legal heirs. Indisputably, the guarantor who is also a borrower within the meaning of section 2(f) of the Act received the said notice under section 13(2) of the Act and the said notice was published in two leading newspapers having wide circulation over the area where the secured asset situates. However upon receipt of notice even by the guarantor, no representation was submitted nor any objection has been raised under sub-section 3A of section 13 of the Act. Subsequently, a notice under sub-section 4 of section 13 of the Act was issued and possession of the secured asset was taken in invocation of section 14 of the 2002 Act. Neither the guarantor nor the legal heir of the proprietor of the said concern has filed any application under section 17 of the Act before the Debt Recovery Tribunal. The word ‘any person’ has been employed in section 17 of the Act has been employed which indicates that the guarantor, being the borrower even the legal heirs of the 6 borrower can approach the Tribunal with an application under section 17 of the Act. However, in the given case, the legal heir of the borrower has taken the law in their own hand and forcefully barged into the property and took possession of the same. Such conduct cannot be countenanced. 7. I respectfully agree with the proposition laid down in the decisions of the co-ordinate bench in WPA 13222 of 2024 and WPA 20235 of 2025 that there is no prohibition in preferring a second application before the learned ACJM or the District Magistrate, as the case may be, and there cannot be any hindrance in taking steps in restoration of the property upon implementation of the order passed under section 14 of the Act. 8. Therefore, based on the discussion made in the preceding paragraphs the writ petition is disposed of, directing the respondent no. 2 to pass appropriate order and to take all necessary steps to ensure secured asset is restored to the petitioners. 9. Petitioners under takes to deposit the cost towards rendering the police assistance. 10. If such cost needs to be deposited in rendering the police assistance, petitioners shall deposit the same. 11. With the aforesaid observation, the present writ petition is disposed of. (Partha Sarathi Chatterjee, J.)