HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.15741 of 2005 ORDER: This writ petition is filed seeking directions by way of mandamus to declare the action of the 1st respondent in issuing auction notice proposing to auction the house of the petitioner bearing H.No.11/755 situated at Thogada Street, Dharmavaram Town and Mandal, Anantapur District, as illegal and arbitrary. It is the case of the petitioner that he was a member of the 4th respondent-society registered under the A.P. Cooperative Societies Act, 1964 (for short ‘the Act’). He was also elected as Director for two terms from 1984-89 and 1989-94. The late father of the petitioner worked as President of the society for some time. The 4th respondent- society has availed loan facility from the 2nd respondent-cooperative bank. On the ground that the 4th respondent-society has not repaid the loan amount, the 2nd respondent bank has obtained Certificate under Section 71 of the Act against the 4th respondent society for recovery of an amount of Rs. 13.00 lakhs towards principal and Rs. 6.30 lakhs towards interest upto 30.9.1998 at 12% per annum. To enforce the said Certificate, on the application filed by the second respondent, proceedings were issued, to auction the property of the petitioner under Rule 52 Clause 11(e) of the A.P. Cooperative Societies Rules, 1964 (for short ‘the Rules’). When the house of the petitioner was notified for auction, the petitioner filed the present writ petition. It is the case of the petitioner that there is no reason or justification for the respondents to auction the house of the petitioner as the respondents have not obtained the Certificate under Section 71 of the Act against the petitioner. It is further stated that as the 3rd respondent obtained the Certificate under Section 71 of the Act against the 4th respondent-society, no steps can be taken against the petitioner for recovering the amounts, by auctioning the property of the petitioner. Although the writ petition is of the year 2005 no counter affidavit is filed by any of the respondents. Heard the learned counsel for the petitioner and Sri O.Manohar Reddy, learned counsel for the 2nd respondent Cooperative bank. It is submitted by the learned counsel for the petitioner that in the absence of any Certificate under Section 71 of the Act, against the petitioner, no steps can be taken against the properties belonging to the petitioner as they are his own properties. Although no counter affidavit is filed by the 4th respondent society, learned counsel appearing for the 4th respondent contends that the petitioner was one of the Directors in the society for some time and he was managing the affairs of the society for some time, as such, he is responsible for payment of the dues owed by the 4th respondent-society. I have verified the Sale Certificate obtained by the respondents 2 and 3. Though the Sale Certificate is obtained against the President of the Society, but the same is not against the petitioner or his late father. May be, that the petitioner has worked as Director for some time and his late father was a President of the said society, but, the fact remains that there was no Certificate obtained by the respondents 2 and 3 against the petitioner. By obtaining Certificate under Section 71 of the Act against the society, no steps can be taken to sell the property of the petitioner by initiating proceedings under Section 52 Clause 11(e) of the Rules. Further, the allegation of the petitioner that no enquiry was conducted by the respondents was not rebutted by the respondents by filing any counter affidavit. Section 71 of the Act, envisages for issuing of Certificate to recover any amount by issuing Certificate against any of the members of the society, in respect of arrears, by making such enquiry as it deems fit before issuing of Certificate under the said provision. In that view of the matter, the respondents without conducting any enquiry and without issuing any prior notice to the petitioner, by merely obtaining Certificate under Section 71 of the Act against the society, cannot take any steps for sale of the house property of the petitioner and the sale notice issued under Rule 52 of the Rules is liable to be set aside. The writ petition is accordingly allowed and the sale notice issued under Rule 52 Clause 11(e) of the Rules is quashed. The respondents are restrained from proceeding with the sale of the house property of the petitioner. However, it is made clear that if there are any dues from the petitioner and if he is personally liable, including any debt on behalf of the society, this order will not preclude the respondents from taking steps against the petitioner in accordance with law. Subject to the above observations, the writ petition is allowed. No costs. ____________________ R. SUBHASH REDDY,J Date: 3rd March, 2011 pnb