HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION NO. 29054 OF 2010 Between: A. Manesh Kumar S/o A. Koteswara Rao ………….Petitioner AND The Reserve Bank of India, Head Ofice, Nariman Point, Mumbai and two others ………….Respondents ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed in the nature of Writ of Mandamus declaring the action of the second respondent in issuing possession notice dated 25.9.2010 as illegal and consequently direct the second respondent not to interfere with the possession of the petitioner’s Flat No. 108 in Ground Floor, admeasuring 1400 sq.feet along with car parking area. This Writ Petition is misconceived inasmuch as the petitioner is neither borrower nor guarantor. The third respondent herein mortgaged the property to the bank and obtained loan. The petitioner herein purchased the mortgaged property from the third respondent in the year 2009. It is stated that the petitioner has no knowledge about the transaction of 3rd respondent with the second respondent-Bank. It is his contention that in the Encumbrance Certificate also it is not mentioned that the property is mortgaged. A plain reading of Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SRFAESI Act”) reveals that if any person aggrieved may prefer an appeal to the Debts Recovery Tribunal within forty five days from the date on which such measures had been taken. The relevant portion 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.” Be that as it may, the Supreme Court in SLP © 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.” Following the above Supreme Court Judgment, the Writ Petition is dismissed and the petitioner is at liberty to approach the Debts Recovery Tribunal. There shall be no order as to costs. __________________________ GHULAM MOHAMMED, J ______________________ N. RAVI SHANKAR, J DATE: 23.11.2010 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.