THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.26192 of 2007 Date:28.08.2009 Between: Smt. Kolluru Bala Bharathi. ..Petitioner and Union Bank of India and others. ..Respondents THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.26192 of 2007 ORDER: (Per GM,J) This writ petition is filed seeking to declare the action of the respondent bank in putting the property of the petitioner i.e., vacant land admeasuring 873 sq. yards in survey Nos.120/B, 121/B, 122 & 123 situated at Gorantla Village, Guntur Mandal, Guntur District, and another land admeasuring 1159 sq. yards in survey No.314/A situated at Reddipalem Village, Guntur Rural Mandal, Guntur District; to auction by inviting sealed tenders as illegal and arbitrary, and consequently to direct the respondent bank not to dispossess the petitioner from her property. It is stated that during the pendency of the writ petition, the petitioner died i.e., on 16.02.2009 and her legal representatives are brought on record, as per order dated 28.08.2009 passed by this Court in W.P.M.P.No.8277 of 2009, as petitioner Nos.2 and 3. It is the case of the petitioner (since deceased per legal representatives) that the fourth respondent, who is her son, had taken original sale deeds of the property along with her signatures stating that the same are required for opening an account in the Union Bank of India. However, it is transpired that the fourth respondent created an equitable mortgage over the said property by pledging the same as collateral security, availed loan for his business – M/s. Highway Departmental Store, and failed to repay the same. Therefore, the respondent bank, invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘the Act’ for brevity), circulated pamphlets inviting sealed tenders in respect of petitioner’s property without publication of the same in any newspaper in Guntur District. The grievance of the petitioner (per legal representatives) is that without issuing any notice, the respondent bank put her property to auction by circulating pamphlets inviting sealed tenders. The respondent bank, denying the allegations made in the writ petition, filed a counter-affidavit stating that they followed the prescribed procedure under the Act; that as the fourth respondent failed to repay the loan taken by him by pledging the property, they filed O.S.No.800 of 1999 on the file of the Court of I Additional Senior Civil Judge, Visakhapatnam, against the petitioner and the fourth respondent for recovery of the loan; that the petitioner and the fourth respondent appeared before the learned Judge and that suppressing the real facts, the petitioner filed this writ petition. Para 10 of the counter-affidavit, which is relevant to be extracted, reads as under. It is respectfully submitted that the contention of the petitioner that the respondent Bank has not followed the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, is totally false as the respondent Bank has scrupulously followed the steps prescribed in the said Act for disposing the assets. The Chronological events/steps taken by the respondent bank are stated as follows: a) A legal notice dt.17.9.99 was issued to the respondent No.4 and petitioner herein recalling the loan availed by the respondent No.4 from the respondent Bank through their Advocate Sri Prasada Rao as the respondent No.4 has failed to repay the loan amount as per the contract. b) Reply notice dt. 2.10.99 was issued by the respondent No.4 through his Advocate Smt. V. Vijayalakshmi wherein it was admitted that the respondent No.4 has availed cash credit loan facility of Rs.4 lakhs and the petitioner herein stood as guarantor by offering her property as collateral security by executing necessary documents. c) As the respondent No.4 has failed to repay the loan amount, the respondent Bank has filed a suit O.S.No.800/99 on the file of the I Additional Senior Civil Judge against the respondent No.4 and the petitioner herein for recovery of dues which was decreed on 18.10.2000. d) Notice under Sec.13(2) was issued on 4.5.2007. e) Demand Notice under Sec.13(2) was published in the News papers Deccan Chronicle and Andhra Bhoomi on 4.5.2007. f) Possession notice was issued to the petitioner on 6.7.2007 fixing the date of taking over possession on 6.8.2007 which was duly received by the petitioner on 12.7.2007. g) Possession notice was issued to the petitioner on 24.8.2007 fixing the date of taking over possession on 7.9.2007. h) Possession of assets were taken over by the respondent Bank on 7.9.2007 under cover of Panchanama. i) Possession notices as per rule 8(1) was issued on 7.9.2007. j) Possession notice was published in the News papers Deccan Chronicle and Andhra Bhoomi of Vijayawada Edition on 19.9.2007 k) Sale notice under Rule 8(6) was issued to the petitioner on 19.9.2007 which was duly received by the petitioner l) Auction notice was published in the news papers Deccan Chronicle and Andhra Bhoomi of Vijayawada edition fixing date of auction on 26.11.2007 at Guntur m) Auction notice was issued in Deccan Chronicle and Andhra Bhoomi Vijayawada edition. n) Public notice was conducted on 26.11.2007 and sale of property of land admeasuring 1159 sq.yards belongs to K. Bala Bharati was finalized in faovur of K. Edikondalu forRs.8,12,777/-. o) Auction of land admeasuring 873 sq.yards belongs to K. Bala Bharati was finalized in favour of Srinivasa Rao for Rs.10,10,999/-. The counter averments are not denied by the petitioner by filing any reply affidavit. In view of the unrebutted counter averments, the case of the petitioner (per legal representatives) that she does not know about the steps taken by the respondent bank and that the respondent bank did not give her notice cannot be accepted. In the circumstances, we do not see any illegality or irregularity in the impugned action of the respondent bank warranting interference by this Court. Therefore, the Writ Petition is dismissed. As a sequel to dismissal of the writ petition, interim order dated 07.12.2007 passed in W.P.M.P.No.34155 of 2007 stands vacated and the amount, if any, paid by the first petitioner shall be refunded. Accordingly, W.P.M.P.No.34155 of 2007 is dismissed. Consequently, W.V.M.P.No.2208 of 2008 filed by the respondents in the writ petition seeking to vacate interim order dated 07.12.2007 passed in W.P.M.P.No.34155 of 2007 is dismissed. W.P.M.P.No.22830 of 2009 filed by petitioner Nos.2 and 3 for interim direction is also dismissed. No order as to costs. ______________________ GHULAM MOHAMMED, J 28th August, 2009 ______________________ VILAS V. AFZULPURKAR, J GHN