Abhilasha Kumari, J.:— Learned advocate for the petitioners prays for permission to join the State of Gujarat as party-respondent No. 2 to the petition. Permission to do so, is granted. The necessary amendment in the cause-title be made, forthwith.
2. Heard Mr. Aditya A. Gupta, learned advocate for the petitioners.
3. It is submitted that the alleged mortgage in favour of the respondent-Bank is not validly executed inasmuch as it is not in consonance with the provisions of the Notification dated 02.12.1980 issued by the State Government, in which the town of Jamnagar has not been included. Therefore, under the provisions of Section-58(f) of the Transfer of Property Act, 1882 (“the T.P Act”, for short), read with Section-37 of the the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“the Securitisation Act”, for short), the mortgage is not a valid mortgage in the eyes of law. Mr. Aditya Gupta, learned/advocate for the petitioners submits that Jamnagar has been mentioned in the heading “Names of District”, which is shown under Column-2 and not under Column-3.
4. It is further submitted that under the Securitisation Act, the respondent-Bank has no right to proceed against the guarantor and the remedy under the said Act is not available to the Bank qua the guarantor. In view of the above submissions, it is prayed that interim relief be granted.
5. Mr. Abhijit Joshi, learned advocate for respondent No. 1-Bank, has submitted that the town of Jamnagar has been included by a Notification of the State Government issued by the Urban Department and Urban Housing Department No. KV/28/2006-AMN/902006-140-P, dated 14.02.2006, under Section-58(f) of the T.P Act, as is clear from Annexure-I to the Gujarat Stamp Act, 1958. It is further submitted that even in the Notification dated 02.12.1980, it is clearly mentioned that it is applicable to the towns mentioned in Column-2 of the Notification, which includes Jamnagar.
6. In response to the second submission advanced by the learned advocate for the petitioners, Mr. Abhijit Joshi, learned advocate for the Caveator-Bank has brought to the notice of this Court, the judgment of the Supreme Court in United Bank of India v. Satyawati Tondon, reported in AIR 2010 SC 3413, wherein it is held that action directly against a guarantor, without taking action against the borrower, is not illegal.
7. It is submitted by the learned advocate for the respondent-Bank that the petitioners have an alternative remedy of filing an appeal under Section-17 of the Securitisation Act.
8. Issue Notice returnable on 09.12.2015
9. Mr. Abhijit Joshi, learned advocate waives service of notice for respondent No. 1-Bank.
10. On the next date of hearing, the State Government may make it clear whether the City of Jamnagar is included in the Notification dated 02.12.1980, as amended from time to time, for the purpose of Section-58(f) of the Transfer of Property Act, 1882.