IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE NOUSHAD ALI WRIT PETITION NO :2106 of 2010 Between: M/s.Housing and Urban Development Corporation Ltd., (A Govt. of India Enterprise), regd. Office at Core-7’A’, HUDCO Bhavan, India Habitat Centre, Lodhi Road, New Delhi, Hyderabad regional office, 5-10-193, I Floor, HACA Bhavan, Opp.Public Gardens, Hyderabad, rep. by its Assistant Chief (Law). ..... PETITIONER AND M/s.Agroha Co-operative Urban Bank Limited, 21-1-663, Hyderabad Cut Piece Cloth Merchants Association Building, III Floor, Rikabgunj, Hyderabad & Others. .....RESPONDENTS The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No. 2106 OF 2010 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) Petitioner-Corporation challenges the notice, dated 16.11.2009 issued by the first respondent-Bank under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘Act’) calling upon the borrower-fourth respondent herein not to transfer by sale, lease or otherwise the secured assets detailed in schedule ‘B’ of the notice without obtaining its written consent. Learned counsel for the petitioner-Corporation submits that the house property described as schedule ‘B’ in the impugned notice, which was earlier mortgaged to the first respondent-Bank has been released on 01.10.2008 in favour of M.Narasimha, the partner of fourth respondent partnership firm and later it has been mortgaged with the petitioner-Corporation by availing the loan an therefore, the first respondent-Bank has no authority or jurisdiction to issue the notice covering the said property for realization of the outstanding dues to the Bank and that no sanction or release of credit facilities are made to the fourth respondent or its partners after the release of mortgage by the first respondent-Bank. The Apex Court in Mardia Chemicals Ltd. V. Union of India ((2004) 4 SCC 311) categorically held that at the stage of issuance of notice under Section 13(2) of the Act, a borrower is not entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debts Recovery Tribunal as provided under Section 17 of the Act matures on any measure having been taken under sub-section (4) of Section 13 of the Act. Whether the first respondent-Bank can proceed with the measures under sub-section (4) of Section 13 of the Act after issuance of the impugned notice in respect of the property described as schedule ‘B’ is a matter that requires to be established by the first respondent-Bank or by the petitioner- Corporation about the release of the mortgage of the property by the fourth respondent. The first respondent-Bank cannot take such measures under sub-section (4) of Section 13 of the Act without the consent of the other secured creditors when there are more than one secured creditor, who lent financial assistance to the borrower. If really the said property is mortgaged to the petitioner- Corporation and if the first respondent-Bank takes any measures without obtaining the consent of the petitioner-Corporation as contemplated under sub-section (9) of Section 13 of the Act, it is always open for the Corporation to challenge the said measures before the appropriate forum. Under those circumstances, the writ petition cannot be entertained and the same is accordingly dismissed. No order as to costs. _________________ (A. GOPAL REDDY, J.) _________________ (NOUSHAD ALI, J.) FEBRUARY 04, 2010 TSR