HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION No : 13637 of 2009 O R D E R: (per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed challenging the action of the 1st respondent in issuing proclamation of sale in Form 13 in R.P.No. 304 of 2005 in O.A.No. 98 of 2005 dated 11.06.2009 in relation to the petitioner’s property, admeasuring Ac.2.27 guntas in Survey Nos. 86/A, Kanakamamidi Village, Moinabad Mandal, Ranga Reddy District. The petitioners are borrowers. They have availed loan from the 2nd respondent bank for starting an industry in the name and style of M/s A.P.R. Plastic Industry. Since they could not proceed properly with the business, they fell in arrears to the bank. According to them, as on 01.12.2005, they were liable to pay an amount of Rs.12,20,321/- . Therefore, the 2nd respondent bank filed O.A.No.98 of 2005 before the Debts Recovery Tribunal and obtained a certificate for the said amount and thereafter, filed R.P.No. 304 of 2005 before the Recovery Officer for execution of the certificate. The petitioners received a notice dated 29.02.2008 from the 1st respondent Tribunal, calling upon them to pay the amount of Rs.8,84,770/- within 15 days from the date of its receipt, in default, recovery would be affected by sale of mortgaged properties in accordance with the provisions of the Debts Due to Banks & Financial Institutions Act, 1993. Thereafter, to their surprise, the petitioners have received the proclamation notice of the mortgaged property. Learned counsel for the petitioners, while placing reliance upon Section 25 of the 1993 Act, contended that after obtaining the recovery certificate, the bank has to proceed with the attachment of the property, but however, in the instant case, they have resorted to proclamation of sale, which is impermissible under law. To counter these submissions, the learned Standing Counsel for the respondent bank contended that the petitioners themselves have mortgaged the property and the bank has obtained a decree by filing O.A. under the provisions of the 1993 Act and in pursuance of the execution of these proceedings, they have resorted to the proclamation of sale. He has drawn our attention to Section 29 of this Act, which reads as under: “ 29. Application of certain provisions of Income-tax Act:- The provisions of the Second and Third Schedules to the Income-tax Act, 1961 (43 of 1961) and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of to the income- tax: Provided that any reference under the said provisions and the rules to the “assessee” shall be construed as a reference to the defendant under this Act.” A plain reading of Section 29 of the 1993 Act makes it clear that the Recovery Officer had to follow the procedure of 2nd or 3rd schedule of the Income-tax (Certificate Proceedings) Rules, 1962 from time to time as far as possible with necessary modifications. The choice is given to the Recovery Officer. The learned Standing Counsel has emphasized that in the instant case, the petitioners are borrowers, who themselves have mortgaged their property against which the bank has obtained a decree and in pursuance of it, they are proceeding to recover the amount and after obtaining recovery certificate, they have issued the proclamation notice. The learned Standing Counsel has contended that if an assessee is due with regard to the assessment year, the Recovery Officer can proceed with the attachment or the sale of the property, but here in the instant case, it is quite different and distinct, inasmuch as the borrower is also a mortgager and he has mortgaged the property and when once the Recovery Officer has followed the procedure, this Writ Petition is not maintainable. In support of his contentions, he has drawn our attention to Rule 11 of the 1962 Rules also. In view of the legal position and the submissions made by the learned Standing Counsel for the bank, the contention of the learned counsel for the petitioners that first the bank officials should attach the property cannot be countenanced, inasmuch as in the instant case, the property is mortgaged by the borrower, who has obtained the loan and they have obtained decree and to execute it, they have obtained a recovery certificate for the recovery officer to adopt the procedure in accordance with the procedure in 2nd schedule. Section 29 is very clear and categorical to the effect that it is the choice given to the Recovery Officer to adopt the procedure subject to the some modifications. In these circumstances, the Writ Petition is dismissed. No costs. ---------------------------- (GHULAM MOHAMMED,J) ----------------------- (G. CHANDRAIAH, J) 21st June 2010 ksld 1. ..... REGISTRAR 2. // TRUE COPY // 3. SECTION OFFICER To 4. 1) 2 CD copies 5. Form-NIC-OGS/WP{BMR} 3rd August 2009 ksld