THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.21518 of 2010 Dated:27.08.2010 Between: Sri Rajesh Mathur, And another. …Petitioners and The State Bank of India. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.21518 of 2010 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) The two petitioners filed the instant writ petition aggrieved by the possession notice dated 18.03.2010 issued by the respondent under Sub rules (1) and (2) of Rule 8 of the Security Interest (Enforcement) Rules, 2002 (the Rules). They seek invalidation of the said notice on the ground that it is arbitrary and illegal. The first petitioner borrowed a sum of Rs.18,72,000/- from the State Bank of India, Tolichowki Branch, in January 2007 for the purchase of a residential house. The loan amount is repayable in sixty monthly installments with floating rate of interest. At the time of grant of loan, it was 10%. The petitioners created equitable mortgage by deposit of title deeds in respect of immovable property as security to the loan amount. The loan is also secured by the respondent by two sureties. The petitioners allege that though there were difficulties due to business losses, they repaid the entire loan amount leaving a small balance. The respondent issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), and issued the impugned notice thereafter, which according to the petitioners, is illegal and arbitrary. Counsel for the petitioners vehemently contends that when the entire amount is paid by the petitioners, issue of notice under Rule 8(1) and (2) of the Rules is unenforceable. He also submits that, if any balance amount is left, his clients are willing to pay and, therefore, attachment may be stayed. We have given our anxious consideration to the factual background. A perusal of the notice dated 02.12.2009 issued under Section 13(2) of SARFAESI Act would show that, as on the date of the notice, the aggregate outstanding amount was Rs.22,46,908.41, which includes interest and expenses. The petitioners, however, contend that they have repaid the entire amount. Before us, no evidence is produced. Secondly, even after issuance of possession notice dated 18.03.2010, the petitioners kept quiet. They approached this Court only when the property is to be attached. As there is a dispute with regard to payment, a writ petition would not lie. If so aggrieved, the petitioners can prefer an appeal to the Debts Recovery Tribunal as provided for under Section 17 of the SARFAESI Act. In an unreported judgment in M/s.Vensa Bio Tech Limited v State Bank of India (W.P.No.22637 of 2009, dated 22.10.2009) a Division Bench of this Court declined to interfere in a writ petition in a similar case. Therein, the auction/tender notice issued by the Bank enforcing security was assailed. The Division Bench dismissed the writ petition observing as under. The petitioners having unsuccessful in challenging the possessory notice and also the earlier auction notice issued by the respondent-Bank which is the subject matter of writ petition No.14649 of 2009 filed the present writ petition only to stall the auction and prevent the Bank from realizing the debt. The petitioners, if aggrieved by the reserve price fixed by the respondent-Bank in conducting the sale, in exercise of the powers conferred under Section 13(4)(a) of the SARFAESI Act, can always challenge the same by way of an appeal under Section 17 of the SARFAESI Act, before the Debt Recovery Appellate Tribunal. In view of the alternative remedy available to the petitioners, we are of the view that this is not a fit case where this Court can invoke the extra ordinary jurisdiction to stall the auction proceedings. In view of the above, when there is an effective alternative remedy, the writ petition is misconceived. The Writ Petition is therefore dismissed. __________________ (V.V.S.RAO, J) ______________________________ (RAMESH RANGANATHAN, J) 27.08.2010 vs