THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION NOS.11114 AND 11115 OF 2010 COMMON ORDER: (per VE, J) Both these Writ Petitions are filed for a Mandamus to declare the possession notice issued by respondent No.1 under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’), in respect of residential flats bearing Nos.101 and 102 in the first floor of Care Residency bearing Municipal No.10-5- 64/8/C, Sriram Nagar Colony, Masab Tank, Hyderabad, and consequential notice, dated 30-04-2010, issued by the Advocate-Commissioner, directing the petitioners to handover possession of the said property on or before 06- 05-2010, as illegal and arbitrary. As the property involved in both these Writ Petitions is common and the respondents also being same, they are heard together and disposed of by this common order. It is stated in the affidavit filed in support of the Writ Petition that respondent Nos.2 and 3 are the original landlords of the flats in question and that the petitioners came into possession of the same by virtue of mortgage deeds, dated 17-04-2007 and 29-01-2007 executed by respondents 2 and 3 for sums of Rs.3,75,000/- and Rs.5 lakhs. According to the petitioners, though they have filed W.P.No.10825 of 2010 and obtained a direction vide order, dated 30-04-2010, not to dispossess them from the flats in question without following due process of law, respondent No.1- Bank issued the impugned possession Notice against respondent Nos.2 and 3 for recovery of the outstanding loan amount of Rs.33,15,840/- plus interest and expenses. It is stated that though the petitioners have a right of appeal under Section 17 of the Act questioning the impugned proceedings, as the Presiding Officer, Debt Recovery Tribunal, Hyderabad, is presently not available and the Incharge Debt Recovery Tribunal is at Madras, they could not file the appeal. It is further stated that meanwhile, the first respondent-Bank approached the 4th respondent- Chief Metropolitan Magistrate, Nampally, Hyderabad, and obtained order vide Crl.M.P.No.563 of 2010, dated 25-03-2010, authorising respondent No.5- Advocate-Commissioner to serve notice and take possession of the property in question. It is further stated that as per the notice issued by respondent No.5, the possession is directed to be delivered by 06-05-2010. Hence, these two Writ Petitions. Heard the learned Counsel appearing for the petitioners. Admittedly, W.P.No.7337 of 2010 filed by the petitioners was dismissed on 01-04-2010 with an observation that the petitioners cannot seek aid of the High Court to interdict respondent No.1-Bank from exercising its legal right for recovery of the loan amount and directing it not to dispossess them without following due process of law. Once the property in question was mortgaged with respondent No.1-Bank, respondent Nos.2 and 3, who are the landlords, do not have any right whatsoever to mortgage the said property again in favour of the writ petitioners. However, the mortgage deeds stated to have been executed by respondent Nos.2 and 3 in favour of the petitioners are admittedly unregistered mortgage deeds and therefore, the said mortgage deeds cannot be treated as legal and valid documents and the same do not in any way bind respondent No.1- Bank. As respondent Nos.2 and 3, who are the borrowers, failed to repay the outstanding amount, respondent No.1- Bank has invoked the provisions of Section 13 (4) of the Act read with Rule 9 of the Rules made under the Act cautioning the general public not to deal with the property in question and issued the impugned notice under Section 13 (2) of the Act calling upon the borrowers to repay the said amount within 60 days. When the impugned possession notice in respect of the flats in question was published in Indian Express daily newspaper on 27-03-10 and the Writ Petitions filed by the petitioners in respect of the very same property were dismissed, it cannot be said that the petitioners had no knowledge about the recovery proceedings initiated by respondent No.1- Bank. A perusal of the notice issued by the Advocate- Commissioner clearly goes to show that in order to execute his warrant, he visited the flats in question along with an authorized officer of respondent No.1- Bank on four occasions and requested the petitioners, who were found in possession thereof, to vacate the said premises. Finally, at the request of the petitioners, a week’s time was given to them to handover the vacant possession by 06-05-2010. The petitioners are neither borrowers nor guarantors and they are strangers to the transaction between respondent Nos.2 and 3 and respondent No.1- Bank. If the petitioners have advanced any amounts in favour of respondent Nos.2 and 3, it is for them to take appropriate action for recovery of the same. Therefore, we do not see any ground to interdict respondent No.1-Bank from initiating the recovery proceedings under the said Act. The Writ Petitions are accordingly dismissed. ________________ V.Eswaraiah, J ________________ Noushad Ali, J Date: 12-05-2010 lur