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 2 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 3 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 4 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: 5 “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. 6 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.)