IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SEVENTEENTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.4073 of 2009 Between: Pathan Mastan Khan, S/o. Nabi Khan D.No.19-7-457/A, 3rd Lane, Sangadigunta, Guntur, presently residing at D.No.9358-40/B/24, Tolichowk, Moti Darwaja, Hyderabad-45 ..... PETITIONER AND 1 Canara Bank, Rep by its General Manager, Head Office, Bangalore, Karnataka, India 2 Canara Bank, Rep by its Authorised Officer, Hindu High School Campus, Guntur Main Branch, Guntur. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ of Mandamus or any other appropriate Writ, order or direction declaring the impugned actionof the respondents in actively proceding to dispossess the petitioner from his residential house admeasuring 151.50 Sq.yards in D.No.19-7-457/A, Guntur Municipal Corporation limits, Lanchestor Road No.14 (present) SANADIGUNTA BLACK NO.9, T.S.NO.580, belonging to the petitioner herein under Securitisation Act by mechanically issuing notices even before the same is due as per agreement and not considering the request of the petitioner and not passing any orders there against as decided by the Hon'ble Supreme Court in Mardia Chemicals Case and issuing the premature possession notice under Section 13(4) of violative of principles of natural justice etc and consequently drect the resondents to consider in proper perspective and on realistic basis giving due weightage to the compelling circumstances resulting in default of repayments in the light of the guidelines laid down by the Hon'ble Supreme Court in Mardia Chemicals Case, reported in AIR 2004 SUPREME COURT 2371, by setting aside the notice under Section 13(4) of the Securitisation Act and grant such other relief or reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.K.V.R.KRISHNA SHARMA Counsel for the Respondent : MR.DEEPAK BHATTACHARJEE FOR R09.04.09,VAK-1&2 The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.4073 of 2009 ORDER: (per the Hon’ble Sri Justice V. Eswaraiah) It is the case of the petitioner that he availed a housing loan from the 2nd respondent Bank, the Canara Bank, and the said amount is repayable in 15 years at the rate of Rs.6,000/- per month. As the petitioner failed to repay the instalments promptly, the account of the petitioner was declared a ‘non- performing asset’. Therefore, the respondent Bank invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcerment of Security Interest Act, 2002 (for short “the SARFAESI Act”) and issued notice dated 25-06-2008 under Section 13(2) of the SARFAESI Act calling upon the petitioner to pay a sum of Rs.6,46,943/- together with interest, within sixty days. It is the grievance of the petitioner that he did not receive any notice from the respondent Bank. While so, all of a sudden, possession notice under Section 13 (4) of the SARFAESI Act was published in the Eenadu Daily newspaper of Guntur Gazette on 02-09-2008. It is stated that even after 02-09-2008, the petitioner paid a sum of Rs.1,00,000/- on various dates and he also paid the monthly instalments promptly prior to the notice dated 02-09- 2009. It is stated that the 2nd respondent has not considered his request and without considering his oral objections, the proceedings were initiated under Section 13(4) of the SARFAESI Act. Thus, the issuance of notice under Section 13(4) of the SARFAESI Act is illegal and arbitrary. Learned counsel for the respondent Bank submits that whatever amounts were paid by the petitioner were given credit in the account of the petitioner and the petitioner’s dues are Rs.6,14,567/- as on 13-04-2009. In the above circumstances, we are not inclined to express any opinion with regard to the disputed questions of fact as to whether the notice under Section 13(2) of the SARFAESI Act has been received by the petitioner or not and whether the measures taken by the respondent Bank are in conformity with the provisions of the SARFAESI Act. The petitioner has got an effective alternative remedy under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal. Therefore, we are not inclined to admit the writ petition questioning the possession notice issued under Section 13(4) of the SARFAESI Act. If there is any illegality or irregularity on the part of the respondent bank, the petitioner can ventilate all his grievances before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. Accordingly, the writ petition is dismissed. However, the petitioner is permitted to avail the remedy under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal within two weeks from the date of receipt of a copy of this order. There shall be no order as to costs. ________________ V.ESWARAIAH, J __________________ SANJAY KUMAR, J Date : 17-04-2009 Note: Issue C.C. in three days (B/o) Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{LS}