THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE N. RAVI SHANKAR DATED: 01-12-2010 WRIT PETITION No. 5235 OF 2010 Between: G. Sree Rama Chandra Gupta ..... PETITIONER AND Canara Bank, Sultanbazar Branch, Sultan Bazar, Koti, Hyderabad, rep., by its Authorised Officer .....RESPONDENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No. 5235 OF 2010 ORDER: (per the Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed by the petitioner who is the borrower seeking a writ of mandamus to declare the action of the respondent in issuing tender-cum-auction notice dated 05-02-2010 published in Andhra Jyothi daily newspaper on 06-02-2010 and putting the mortgaged house property on plot No. 55, Balajinagar Colony, Mohan Nagar, Kothapet, Ranga Reddy District for sale on 09-03-2010 as arbitrary, illegal and contrary to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’). The petitioner has obtained loan to a tune of Rs.15,00,000/- from the respondent – Bank and committed default in payment of the same. The Bank without any prior notice to him under Section 13(2) of the SARFAESI Act issued tender-cum-auction notice dated 05-02- 2010 under Sections 13 (4) and 12 of the SARFAESI Act fixing the reserve price at Rs.26,00,000/- and the date of auction was on 09-03- 2010. None appears for the petitioner. The learned counsel for the respondent – Bank has submitted that since the petitioner has failed to repay the loan, notice dated 01-07-2009 under Section 13 (2) of the SARFAESI Act was issued and published in Eenadu and Indian Express newspapers on 15-07-2010 and possession notice was issued on 12-12-2010 which was published in the newspapers on 15- 12-2010 and ultimately, the property was put to auction by the impugned auction-cum-tender notice. At that juncture, the petitioner has filed the present writ petition. He contends that the writ petition is liable to be dismissed since the Bank has followed the procedure contemplated under the SARFAESI Act and the property was auctioned for Rs.20,00,022/ and the sale was confirmed in favour of the auction purchaser. When once the property is put to auction and on the auction purchaser having deposited the amount, he cannot be deprived of enjoying the property and the sale certificate has to be issued to him. Further, under Section 17 of the SARFAESI Act, any person aggrieved by the measures taken under Section 13 (4) may prefer an appeal to the Debts Recovery Tribunal. Section 17 of the SARFAESI Act 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.” The Supreme Court in in SLP (C) 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.” In view of availability of efficacious alternative remedy of appeal to the petitioner, we do not see any reason to exercise the jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition fails and is accordingly dismissed. There shall be no order as to costs. GHULAM MOHAMMED, J N. RAVI SHAKNAR, J 01-12-2010 ks