THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE G. CHANDRAIAH W.P.Nos.14047 and 16126 of 2010 COMMON ORDER: (Per Sri Justice Ghulam Mohammed, J) Since the common issue is involved in both these writ petitions, they are being taken up together for disposal. 2. Both the writ petitions are filed seeking a mandamus to declare the action of the first respondent in taking over the physical possession of the petitioner’s residential house with two shops bearing H.No.18-1-5, plot No.61 in Sy.No.193, admeasuring 264 square yards in Sri Rama Nagar Colony, MES Colony, Alwal, Trimulgherry Post, Secunderabad, as illegal and arbitrary. 3. The brief facts of the case are that the petitioner stood as one of the guarantors to the loan obtained by Sri Ch.Ranga Rao, Proprietor of M/s.Sri Ranganatha Traders (for short ‘the borrower’) for a sum of Rs.4,00,000/- from the first respondent Bank by mortgaging certain properties. Since the borrower had failed to pay the outstanding loan amount, the first respondent issued a demand notice, dated 22.08.2003, under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’) to the borrower and the guarantors. Despite notice, as they have failed to pay the loan amount, the first respondent has proceeded to take possession of the securities as per Section 13(4) of the Act. Challenging the said proceedings, the petitioner filed S.A.No.164 of 2008 before the Debts Recovery Tribunal, Hyderabad (for short ‘the Tribunal’), which in turn dismissed the same on 20.11.2009 directing him to redeliver the property to the first respondent Bank within 15 days from the date of the said order and thereafter, it can take necessary steps. Thereafter, the first respondent Bank issued a sale notice, dated 10.07.2010, to the borrower and the petitioner informing that it invited sealed tenders for auction to be conducted on 15.07.2010. Challenging the said notice, the petitioner filed the present writ petitions. 4. Heard the learned counsel for the petitioner, learned counsel for respondent No.1 and the learned Government Pleader for Medical, Health and Family Welfare for respondents 1 and 2. 5. When W.P.No.16126 of 2010 is taken up for admission on 14.07.2010, this Court, by taking indulgence in the matter, granted interim stay of all further proceedings on condition of the petitioner depositing a sum of Rs.5,00,000/-, out of which, a sum of Rs.2,00,000/-within one week from that date and remaining sum of Rs.3,00,000/-within one week thereafter, in default, the first respondent is at liberty to proceed with the auction without confirming the sale. 6. Learned counsel for the petitioner contended that the petitioner never mortgaged the property in question because the said property was previously mortgaged by him in favour of the second respondent-Government for the purpose of House Building Loan in the year 1996, and that the documents produced by the first respondent Bank are created and forged documents. Learned counsel submitted that the petitioner has not complied with the conditional order passed by this Court. 7. Learned counsel for the first respondent Bank vehemently contended that the plea taken by the petitioner that he never mortgaged the property in question has already been decided by the Debts Recovery Tribunal, Hyderabad, in S.A.No.164 of 2008, which was dismissed holding that the property in question can be treated as a secured asset towards the loan taken by the borrower. 8. From a perusal of the material on record, it is evident that the first respondent Bank had initially sanctioned a sum of Rs.2,00,000/- as Overdraft facility to the borrower and the same was enhanced from time to time up to Rs.5.75 lakhs, for which, the petitioner had executed the documents from time to time and that in pursuance of the proceedings initiated under the Act, he paid a sum of Rs.2,00,000/- on 23.01.2006 and agreed to pay the balance amount on or before 31.01.2006, but filed S.A.No.164 of 2008 with the plea that he never mortgaged the property in question, which has been decided by the Tribunal and consequently, the said application was dismissed on 20.11.2009. The relevant portion of the said order reads as under: “There is no evidence placed by the applicant that the property is not mortgaged in favour of the respondent Bank. Whereas, the respondent has proved that the applicant has mortgaged the property by filing Ex.R1. Exs.R2 and R3 shows that the said mortgage was extended whenever the limits were enhanced. There is no evidence placed by the applicant that the said documents are not valid one. The said documents were unchallenged. The applicant has not come to the witness box to deny the said documents relating to the mortgage. Under these circumstances, I hold that the respondent is having a charge over the property by way of mortgage and the schedule property can be treated as a secured asset towards the loan of M/s. Sri Ranganatha Traders, rep. by Sri Ch. Ranga Rao. Accordingly, this point is answered in favour of the respondent Bank. From the above, it is clear that the property mortgaged by the petitioner is treated as a secured asset towards the loan taken by the borrower. The petitioner without availing the remedy of appeal against the said dismissal order, approached this Court. 9. Hence, both the writ petitions are dismissed. However, this order does not preclude the petitioner from filing an appeal before appropriate forum in accordance with law. No order as to costs. ______________________ GHULAM MOHAMMED, J _________________ G. CHANDRAIAH, J Date:26.07.2010 sj