HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 26294 OF 2010 Between: M/s Vajrasila Granites represented by its Managing Partner ………….Petitioner AND Indian Bank Limited ………….Respondent ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Mandamus declaring the action of the respondent-Bank in conducting the sale on 24.10.2010 pursuant to the notice dated 20.8.2010 even before adjudication of the matter in S.A.No. 194 of 2010, on the file of Debts Recovery Tribunal, Hyderbad, as illegal and arbitrary. Brief facts of the case are that the petitioner herein had availed SOD limit of Rs. 90 lakhs and packing credit limit of Rs. 60 lakhs amounting in toto to a sum of Rs. 150 lakhs from the respondent- Bank and created equitable mortgage over the schedule property in favour of the respondent-Bank. It is stated that the petitioner committed default in payment and therefore, the respondent-bank issued notice dated 30.4.2010 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SRFAESI Act”). It is also stated that the petitioner herein did not discharge the liability within sixty days , the respondent-Bank took symbolic possession of the schedule property and issued possession notice dated 5.8.2010. As the petitioner did not respond to the same, the respondent-Bank issued notice of intended sale dated 19.8.2010 which was duly served on the petitioner. Aggrieved by the same the petitioner herein filed I.A.No. 806 in S.A.No. 194 of 2010 seeking stay of all further proceedings and that application was dismissed holding that the petitioner herein has not made out a prima facie case and the balance of convenience is also not in favour of the petitioner. Aggrieved by the same, the present Writ Petition is filed. The main grievance of the petitioners is that under Section 17(4) of the SRFAESI Act the secured creditor is entitled to take recourse to one or more of the measures specified under sub-section (4) of Section 13 to recover his secured debt but the Tribunal without considering that aspect illegally held that the petitioner has not made out a prima facie case and dismissed his application. Heard the learned counsel appearing for both sides and also perused the material made available on record. Under Section 17 of the SRFAESI Act, any aggrieved person can file an appeal before the Debts Recovery Tribunal. Section 17 of the Act reads as under: “Right to appeal: (1) Any person (including borrower), aggrieved by any of the measures referred to in sub- section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken. (2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy five percent of the amount claimed in the notice referred to in sub-section (2) of Section 13: Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. (3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far s may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.” As seen from the record, the petitioner herein did not discharge the liability within sixty days , the respondent-Bank took symbolic possession of the schedule property and issued possession notice dated 5.8.2010. Be that as it may, the Supreme Court in SLP (c ) No. 10145 of 2010 dated 26th July 2010 at paragraph 27 of the judgment observed as under: “27. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SRFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” In view of the facts and circumstances of the case and also in view of the above observation of the Supreme Court in SLP (C ) No. 10145 of 2010, this Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. However, as the petitioner has already approached the Debts Recovery Tribunal, Hyderabad, the Debts Recovery Tribunal is directed to dispose of S.A viz., S.A.No. 194 of 2010 filed by the petitioner as expeditiously as possible, preferably within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J _____________________ K.G. SHANKAR, J DATE: 14.03.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.