IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.17449 of 2009 Between: V.Nalini Mohan. … Petitioner And Housing Development Finance Corporation Ltd., represented by its authorized officer K.Bharadwaj. … Respondent This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.17449 of 2009 ORDER: - (per the Hon’ble Sri Justice A.Gopal Reddy) Petitioner having availed a housing loan of Rs.3,40,000/- for acquiring/construction of residential flat/house from the respondent- Corporation, failed to pay the equal monthly instalments @ Rs.4,442/- commencing from 01.05.2000 and thereby, the loan account was declared as non-performing asset. The respondent-Corporation invoked the proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, “the SARFAESI Act”), and issued notice under Section 13(2) of the SARFAESI Act, demanding the petitioner to discharge the liability of Rs.4,23,756/-, out of which Rs.2,66,404/- towards outstanding principal amount, Rs.72,586/- towards outstanding E.M.Is., and Rs.42,511/- towards additional interest within sixty days, with further intimation that if he is not ready to pay the liability, the Corporation would exercise its rights under section 13(4) of the SARFAESI Act by issuing possession notice. Since the petitioner failed to pay the outstanding dues as demanded, the Corporation filed Crl.M.P.No.191 of 2009 on the file of Chief Metropolitan Magistrate, Cyberabad to appoint an advocate commissioner for taking possession of the property and to provide police assistance to evict the occupants and deliver vacant possession. Questioning the same, the petitioner filed this writ petition contending that the notice under Section 13(2) of the SARFAESI Act, has not been served on him and thereby he is deprived of availing the appellate remedy before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act and, therefore, the entire proceedings have to be set aside for not following the procedure. A detailed counter-affidavit has been filed along with the copies of notice and acknowledgment evidencing the service of notice issued under the SARFAESI Act on the petitioner. It is asserted that the notice under Section 13(2) of the SARFAESI Act has been acknowledged by the petitioner on 19.10.2006, which is also evident from his letter dated 26.12.2006; that by the end of September, 2009 the total outstanding amount of Rs.2,66,997/- is due under the loan account and though the court stayed the further proceedings with conditional order, the petitioner has not complied with the same so far. No reply-affidavit has been filed contradicting the said averments made in the counter. Further the letter dated 26.12.2006 addressed by the petitioner to the authorised officer also discloses that he received notice under Section 13(2) of the SARFAESI Act and enclosed a cheque of Rs.2,30,000/- as arrears of his loan account till March, 2007 with a request to consider his plea to regulate his account and do the needful, followed by another letter dated 16.01.2007 informing the Corporation that he is mobilising the cheque amount which he had issued along with the letter dated 26.12.2006 and agreeing to arrange the amount by 23.01.2007. It also shows that the cheque issued by the petitioner has not been honoured. The petitioner suppressing the said fact invoked the jurisdiction of this Court, though not entitled to any discretionary relief. Since this Court granted stay on condition of petitioner depositing Rs.1,00,000/- within a period of four weeks from the date of order i.e., 21.08.2009 and as the petitioner complied with the said conditional order by depositing half of the amount, we are inclined to stay the recovery proceedings on condition of petitioner depositing the remaining balance amount within a period of three weeks from the date of receipt of copy of this order. The petitioner is at liberty to file an appeal if aggrieved by the order passed under Section 13(2) and 13(4) of the SARFAESI Act and can raise all the grounds available to him. In default of payment of the amount within three weeks from the date of receipt of copy of this order, it is open for the bank to take possession of the property and proceed in the matter. Accordingly, the writ petition is disposed of with the above direction. There shall be no order as to costs. _____________________ (A.GOPAL REDDY, J) ___________________________________ (SAMUDRALA GOVINDARAJULU, J) 03.11.2009. Lmv