IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EVENTEENTH 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.24896 of 2009 Between: Sri Chaitanya Education Society, represented by its Secretary & Correspondent. … Petitioner And Indian Bank, represented by its Manager and two others. … Respondents This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.24896 of 2009 ORDER: - (per the Hon’ble Sri Justice A.Gopal Reddy) Petitioner claiming to be a tenant of the property, which was subject matter of the mortgage with the respondent Bank, and for the defaults committed by the owner/mortgagor, the respondent Bank issued notice dated 16.06.2009 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, “the Act”) for recovery of the secured debt, followed by a possession notice under Section 13(4) read with rules 8 and 9 of the Act on 30.09.2009. On issuing the possession notice, petitioner filed S.A.No.152 of 2009 before the Debts Recovery Tribunal in which he filed I.A.No.591 of 2009 to stay the possession notice dated 30.09.2009, contending that he filed O.S.No.96 of 1998 before the V Additional District Judge, Vijayawada for specific performance of sale agreement and that one T.Sambasiva Rao, General Power of Attorney Holder of A.B.Durga Prasad, the owner of the property who availed the loan, also filed eviction suit in O.S.No.20 of 2003. Both the suits were tried together and the suit in O.S.No.96 of 1998 filed by the petitioner for specific performance was dismissed, while decreeing the suit in O.S.No.20 of 2003 for eviction and also for payment of arrears of rents etc. On dismissal of the suit for specific performance, the petitioner filed an appeal before this Court and when he sought for stay of eviction, this court granted stay on condition that the petitioner deposits Rs.2,34,000/- as directed by the lower Court and also a sum of Rs.5,00,000/- towards mesne profits within a period of eight weeks from that date, which is said to have been complied by the petitioner. Against the said conditional interim stay granted in A.S.M.P.No.1661 of 2005 dated 25.08.2005, petitioner filed S.L.P.No.2067 of 2007, which was disposed of observing any payment in regard to rent is made the same will be subject to the final outcome of the appeal, filed against the dismissal of the suit for specific performance. If the petitioner succeeds in the said appeal, the amount now deposited by him by way of monthly rents will be adjusted towards sale consideration. The Special Leave Petition has been disposed of accordingly. On disposal of the S.L.P., the petitioner came to know about the O.A.No.995 of 1999 pending before the Debts Recovery Tribunal, Visakhapatnam. Therefore, he approached Indian Bank, Vijayawada, for making payment of the same and the Bank expressed its inability, unless he gets an order from the Debts Recovery Tribunal. In view of the same, the present S.A.No.152 of 2009 is filed, in which he filed I.A.No.591 of 2009 and sought for stay of possession notice. The learned Tribunal rightly dismissed the I.A. holding that the proceedings in R.P.No.163 OF 2002 is pending for recovery of the amount. The petitioner approached the recovery officer and filed an application in I.A.No.18 of 2008 praying the tribunal that the applicant is ready to deposit Rs.71.00 lakhs towards due amount to the Bank. But the applicant has not deposited the amount so far and once again filed another application before the Recovery Officer in I.R.No.1036 of 2009 in R.P.No.163 of 2002 seeking permission to deposit the entire dues payable to the Bank inter alia stating that in August, 2008, A.B.Durga Prasad and A.Apparao sold the property to the applicant and both of them filed a petition requesting the bank and Debts Recovery Tribunal that due to financial condition they could not repay the bank loans and on their behalf the applicant will repay the mortgage loans to the Bank. In spite of the above undertaking and filing the application, he has not paid the mortgage loan and postponing the same on one pretext or the other. Further the rights of the petitioner against A.Appa Rao and A.B.Durga Prasad, if any, under the oral agreement of sale was negatived by the civil Court on dismissing the suit. If that is the case, the petitioner cannot step into the shoes of the mortgager against his will and stall the proceedings pending in R.P.163 of 2002 before the Debts Recovery Tribunal. The Tribunal constituted under the Act cannot go into the inter-see dispute between the mortgagor and the agreement holder, like the petitioner herein. In view of the same, the impugned order passed by the lower court refusing the stay does not warrant any interference. Accordingly, the writ petition is dismissed. It is always open to the petitioner to participate in the auction pursuant to the auction notice and can bid in the property and work out his remedies before the appropriate forum. No order as to costs. _____________________ (A.GOPAL REDDY, J) ___________________________________ (SAMUDRALA GOVINDARAJULU, J) 17.11.2009. 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