THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE N. RAVI SHANKAR DATED: 30-11-2010 WRIT PETITION No. 29932 OF 2010 Between: P. Somasekhar Reddy ..... PETITIONER AND Union of India, rep., by Secretary, Finance Ministry, New Delhi and four others .....RESPONDENTS THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No. 29932 OF 2010 ORDER: (per the Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed seeking a writ of mandamus to declare the action of the respondents in not finalizing One Time Settlement for the loan obtained by the petitioner from the respondent – Bank and resorting to invoke the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’) as arbitrary and illegal. The petitioner has also prayed for a consequential direction to the respondent – Bank to finalize the amount to be paid by him under One Time Settlement and intimate the same to him. The petitioner has obtained loan to a tune of Rs.25,00,000/- from the respondent – Bank and committed default in payment of the same. The Bank has therefore issued notice dated 21-05-2009 under Section 13 (2) of the SARFAESI Act calling upon him to pay Rs.41,06,880/- within 60 days from the date of receipt of the said notice. Since the petitioner has not repaid the amount, the Bank has taken measures under Section 13 (4) of the SARFAESI Act. It appears, thereafter the petitioner has applied to the Bank for One Time Settlement in April 2010, but the same has not been considered so far. Whether to consider the request of the petitioner for One Time Settlement or not is the prerogative of the respondent – Bank and it is not open for this Court to give any direction as prayed for by the petitioner. Further, under Section 17 of the SARFAESI Act, any person aggrieved by the measures taken under Section 13 (4) may prefer an appeal to the Debts Recovery Tribunal. Section 17 of the SARFAESI Act reads as under: “17. Right to appeal:- (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken. (2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy five per cent of the amount claimed in the notice referred to in sub-section (2) of Section 13: Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. (3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.” The Supreme Court in in SLP (C) No. 10145 of 2010 dated 26th July 2010 observed as under: “It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” In view of availability of efficacious alternative remedy of appeal to the petitioner, we do not see any reason to exercise the jurisdiction of this Court under Article 226 of the Constitution of India. However, since it is represented by the learned counsel for the petitioner that the Debts Recovery Tribunal, Hyderabad is not functioning and the Incharge Presiding Officer is functioning only for two days in a fortnight and the Bank is trying to dispossess the petitioner from the premises in question, we deem it appropriate to grant four weeks time to the petitioner to approach the Debts Recovery Tribunal provided he pays an amount of Rs.5,00,000/- (Rupees Five Lakhs only) to the respondent – Bank within a period of two weeks and on such payment, the respondent – Bank shall not take any coercive steps for a period of four weeks. The writ petition is accordingly disposed of. There shall be no order as to costs. GHULAM MOHAMMED, J N. RAVI SHAKNAR, J 30-11-2010 ks Note: Operative portion by wire at party’s costs. B/O ks