THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.32219 of 2010 ORDER: (Per GMJ) This writ petition is filed for a Mandamus to direct the respondent bank not to proceed with Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) by holding that such action is illegal and arbitrary. Brief facts of the case are that M/s. Siri Enterprises, a partnership firm, availed certain credit facilities from the respondent bank and that the petitioners stood guarantee to the same and the property documents of the petitioners were taken for that purpose. Alleging that the borrower firm defaulted in payment of the loan amount, the respondent bank initiated proceedings under the Act. Alleging that the respondent bank failed to follow the procedure prescribed in the Act, the petitioners filed S.A.No.212 of 2010 on the file of the Debtors Recovery Tribunal. Though the S.A. is pending, the respondent bank, with a view to harass and extract money from the petitioners, approached the Chief Metropolitan Magistrate, Hyderabad under Section 14 of the Act and obtained orders on 02.11.2010 in Crl.M.P.No.470 of 2010 to take physical possession of the petitioners’ properties. According to the petitioners, this action of the respondent bank when the S.A. is pending is contrary to the provisions of the Act. Therefore, the petitioners are before this Court by filing the present writ petition. The learned counsel for the petitioners vehemently contended that Section 17 of the Act envisages that the appeal filed under the Act should be disposed of within a period of sixty days from the date of filing and that the secured creditor, depending upon the outcome of the appeal, has to take further course of action and therefore, the action of respondent bank in proceeding against the petitioners under Section 14 of the Act is contrary to the provisions of the Act. The learned counsel further contended that though other properties available for recovery of the amount due are sufficient, the respondent bank is proceeding against the properties of the petitioners. On the other hand, the learned counsel for the respondent bank contended that the petitioners have not come to the Court with clean hands as they suppressed the fact that they have already filed stay application in the S.A., and failed to obtain stay orders before the Tribunal. The learned counsel further contended that the contention of the learned counsel for the petitioners that the respondent bank cannot take any action when the appeal is pending is untenable. In support of his contention, the learned counsel for the respondent bank relied on the decision of the Supreme Court in Mardia Chemicals Ltd. vs. Union of India[1], whereby it was held that the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition as it may deem fit and proper to impose. A perusal of the record shows that the petitioners challenge the action of the respondent bank in proceeding under the Act against the properties of the petitioners while the S.A. filed against it is pending, but they have suppressed the fact that they have filed the stay application in the S.A. and failed to obtain interim order. Having considered the facts and circumstances of the case and the submissions of the learned counsel for both sides, we of the view that when the borrower firm failed to repay the debt amount, the (lender) respondent bank is entitled to proceed against the borrower firm or the guarantors of the firm of its choice for recovery of the debt, but steps of recovery shall be taken in accordance with the provisions of the Act and that the petitioners, having approached the Tribunal by filing the S.A. against the action of the respondent bank in proceeding against their properties for recovery of the debt under the Act and having failed to satisfy the Tribunal in obtaining interim order in their application for stay, are not entitled again to move this Court for similar reliefs since as per the decision of the Supreme Court in Mardia Chemicals (supra), the Tribunal has ancillary powers to grant stay if it deems fit and since the respondent bank proceeded further for recovery of the debt under Section 14 of the Act only when the petitioners failed to obtain stay before the Tribunal. In view of the same, there are no merits in the writ petition. Accordingly, the Writ Petition is dismissed. No costs. ______________________ GHULAM MOHAMMED, J _____________ K.G.SHANKAR, J 02nd February, 2011 GHN [1] (2004)4 SCC 311