THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P. No. 6491 of 2010 DATE: 22-03-2010 Between: Sri Kotha Veerabhadra Rao ….. Petitioner And Bank of India rep., by its Chief Manager & Authorized Officer, Zonal Office,, Visakhapatnam and others. .. Respondents THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE NOUSHAD ALI W.P. No. 6491 of 2010 Order: (Per: THE HON’BLE SRI JUSTICE GODA RAGHURAM) The docket order dated 19-03-2010 in I.A.No. 464 of 2009 in S.A.No. 151 of 2008 passed by the Debt Recovery Tribunal, Visakhapatnam, (for short ‘the learned Tribunal’) is assailed as arbitrary and illegal in this writ petition. The order impugned reads as under: “Petition restored vide order in IA 158/10. For enquiry and stay is granted on the condition of depositing one lakh before the auction, otherwise stay stands vacated. Call on 22/4/10”. The learned Tribunal numbered appeal filed under Section 17 of the Recovery of Debts due to Banks & Financial Institutions Act, 1993 (for short ‘the Act’), assailing the sale notice as S.A.No. 151 of 2008 and granted interim stay of all further proceedings on condition of the petitioner depositing Rs.50,000-00. The petitioner states to have been disabled from attending the Tribunal on account of ill-health and that his advocate also failed to represent in the matter. The appeal was however dismissed for default on 23-07-2009. The petitioner filed an application – I.A.No. 464 of 2009 in S.A.No. 151 of 2008 to set aside the default order dated 23-07-2009. I.A.No. 464 of 2009 was also dismissed for default on 09-10-2009. The secured creditor thereupon again notified the sale by a notice dated 19-02-2010, proposing auction of the immovable property (secured asset) for recovery of dues in an amount of Rs.8,58,149-00. The petitioner thereupon filed I.A.No. 158 of 2010 to set aside the default order dated 09-10-2009, dismissing I.A.No. 464 of 2010. By an order dated 12-03-2010, the learned Tribunal allowed the application seeking condonation of delay in filing I.A.No. 158 of 2010 on condition of the petitioner depositing Rs.1,00,000-00 on or before 15-04-2010. The petitioner states to have deposited Rs.1,00,000-00 with the 2nd respondent on 19-03- 2010. After such deposit the petitioner again approached the learned Tribunal seeking stay of the auction proposed to be conducted on 22-03-2010 pursuant to the sale notification published in the newspapers on 19-02-2010. By the order impugned herein, the learned Tribunal granted stay of the auction on condition of the petitioner depositing Rs.1,00,000-00 before the auction. As already stated auction is scheduled on 22-03-2010. Hence the petitioner is before this Court. The 3rd respondent availed a working capital cash credit loan facility on a limit of Rs.9,50,000-00 from the Bank of India against the personal guarantee of two individuals including Karutury Nagamani. After the 3rd respondent availed the loan/working capital cash credit, the petitioner stood guarantee for the loan in lieu of Karutury Nagamani and executed all the necessary instruments for effectuating the guarantee and had also deposited title deeds of his immoveable property to secure the guarantee. As the 3rd respondent defaulted, the secured assets including of the petitioner were declared ‘non-performing asset’ and proceedings were initiated under the provisions of the Act and the property furnished as security by the petitioner (the secured asset) was notified for sale for realization of the liability of the 3rd respondent to the 2nd respondent. Aggrieved by the possession taken of the property and initiation of sale processes by publication of the sale notice, notifying the sale on 18-11-2008, the petitioner approached the Tribunal. In the light of the petitioner’s negligence in pursuing his appeal before the Tribunal, as disclosed by the chronology of events adverted to above, this Court is satisfied that the exercise of discretion by the learned Tribunal in directing deposit of Rs.1,00,000-00 by the petitioner to the credit of 2nd respondent as a condition precedent for interdicting the auction process does not constitute an error in the appreciation of law or in the exercise of discretion, warranting judicial review under Article 226 of the Constitution of India. There are no merits. The writ petition is accordingly dismissed at the stage of admission. No costs. _____________________________ JUSTICE GODA RAGHURAM ___________________________ JUSTICE NOUSHAD ALI Dated: 22-03-2010 PVKS