THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 3986 OF 2011 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed seeking mandamus declaring the proceedings initiated by the respondent under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’), in respect of property bearing MCH No. 18-8-118, admeasuring 465 Sq.yds situated at Dargah Hazrath Berhane Shah Saheb Qibla, Owaisi Nagar, Edi Bazar, Hyderabad, including possession notice dated 25.01.2011 as malafide and illegal. 2. It is stated in the affidavit that the petitioner is the absolute owner of the subject property and he has been in possession and enjoyment of the said property. While so, in the year 2007, the authorities of M/s.Charminar Urban Co Operative Bank Limited, Hyderabad, are claiming right over the said property by alleging that the said property was mortgaged by the original owner Mohammed Nizamuddin and that the matter went up to the auction as per proceedings in E.P.No.7 of 2000 in A.R.C.No.11 of 1999. Challenging the action of the said bank-authorities, the petitioner filed C.T.A.No.122 of 2007 against the orders in A.R.C.No.11 of 1999 before the Co- operative Appellate Tribunal and when the matter is pending adjudication, the respondent-bank authorities also affixed possession notice on the said property on 04-02-2011 stating that the subject property was mortgaged by Mohammed Nizamuddin on behalf of their borrower Mohammed Nizamuddin and they are trying to evict the petitioner from the said property. Aggrieved by the same, the petitioner filed the present writ petition. 3. Heard the learned counsel for the petitioner and perused the material on record. 4. The main grievance of the petitioner is that the creation of mortgage, sanction of loans are all out come of the fraud and not binding on the petitioner since earlier the authorities of some other banks, who tried to proceed against the subject property, have realized the said fraud and withdrawn the further proceedings. Therefore, having known the said fact the respondents cannot be proceeded further against the property of the petitioner. 5. As seen from the record, it is clear that the petitioner has got an alternative remedy to seek his grievance as provided under Section 17 of the SARFAESI Act by approaching the Debt Recovery Tribunal, Hyderabad. But, however, the petitioner without availing such alternative remedy, straight away approached this Court and filed the present writ petition invoking extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Time an again, the Supreme Court also held in its judgments that the power of jurisdiction under Article 226 of the Constitution of India shall not be exercised when the alternative remedy is available to the borrowers under Section 17 of the SARFAESI Act. In view of the same, we declined to exercise our equitable jurisdiction. The writ petition is misconceived. 6. Accordingly, the writ petition is dismissed. However, it is open for the petitioner to avail alternative remedy available to him by approaching the Tribunal within a period of two weeks 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 February 28, 2011 Kvr/Sp THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE K.G. SHANKAR WRIT PETITION NO. 3986 OF 2011 (Order of the Division Bench delivered by Hon’ble Sri Justice Ghulam Mohammed) Dated : February 28, 2011 SP