THE HON'BLE SRI JUSTICE N.V. RAMANA WRIT PETITION NO: 15691 OF 2007 DATED: 8.2.2008 Between: Anajani Educational Society represented by its Secretary and another. Petitioners And The Visakhapatnam Cooperative Bank Ltd., Visakhapatnam represented by its Branch Manager And others. Respondents THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO.15691 of 2007 ORDER: In this writ petition, the petitioners are seeking a writ of Mandamus declaring the action of the 1st respondent – The Visakhapatnam Cooperative Bank Limited in filing O.A.No.24 of 2007 before the 2nd respondent - The Registrar, Debt Recovery Tribunal under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 as without jurisdiction and liable to be set aside in view of the judgment of the Supreme Court. It is the case of the petitioners that the 1st respondent bank is registered under the Mutually Aided Cooperative Societies Act, 1995 (for short ‘the Act’). The 1st petitioner availed loan from the State Bank of Hyderabad, Tuni Branch after depositing the title deeds and later, on the request made by the petitioners, the loan was taken over by the 1st respondent bank for which respondents 3 and 4 stood as guarantors. Thereafter the petitioners committed default in payment of the instalments and the cheques given by them were dishonoured for which the 1st respondent filed CC No.5 of 2004 on the file of the Munsif Magistrate, Yellamanchili, Visakhapatnam District. While the things stood thus, the 1st respondent issued notice under Section 13(2) of the SARFAESI Act 2002 calling upon the petitioners to pay the due amount. Since the petitioners did not comply with the said notice, the 1st respondent issued notice under Section 13(4) of the SARFAESI Act for taking possession of the properties. It is stated that the 1st respondent colluding with the proposed auction bidder, called for the auction second time and fixed up the upset price contrary to Rule 8(5) of the Act and conducted the auction of the scheduled property. Thereafter the Bank has initiated arbitration proceedings for recovery of the outstanding amount after adjusting the amounts fetched in the auction and while the said proceedings are pending, filed O.A.No.24 of 2007 before the 2nd respondent. The grievance of the petitioners is that as per Section 37 of the Act, if any dispute arises touching the constitution, management or business of the society, and matters connected therewith or incidental thereto, such disputes shall be referred to the Cooperative Tribunal unless the disputing parties exhausted all remedies that may be available to them. In the instant case, though the 1st respondent bank rightly initiated the arbitration proceedings, without terminating the said proceedings has filed the O.A. before the 2nd respondent suppressing the factum of invoking the arbitration proceedings and, therefore, the 2nd respondent has no jurisdiction to entertain the O.A. This Court while admitting the writ petition on 24.7.2007 granted interim directions. Now the 1st respondent Bank has filed WPMP No.29256 of 2007 seeking a direction to the 2nd respondent to transfer the O.A. to be presented before the appropriate forum i.e., A.P.Cooperative Tribunal, Visakhapatnam. But, however, when the petition was taken up, learned standing counsel for the 1st respondent Bank fairly submitted that the 1st respondent do not want such a relief and in view of the judgment of the Supreme Court in Greater Bombay Cooperative Bank Limited v. United Yarn Textiles Pvt. Limited[1] the writ petition may be allowed to the extent that the 2nd respondent has no jurisdiction to entertain the O.A. and liberty may be granted to the 1st respondent Bank to approach the appropriate forum. In view of the above submission, the writ petition is allowed holding that the Tribunal has no jurisdiction to entertain the O.A. Having regard to the stand taken by respondent No.1- Bank in their counter, the Debts Recovery Tribunal, is directed to return the papers relating to O.A.No.24 of 2007 to the petitioner for presenting before the authority having jurisdiction. ____________________ N.V.RAMANA,J DATE: 8.2.2008 msv [1] 2007(1) Decisions Today (SC) 419