IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.6566 of 2009 Between: Ponnala Narahari S/o. P. Ganesh R/o.Flat No.4, MCH No.1-8-1B2/F4, MIG(OG) 2nd Floor, APHB, Baghlingampally, Hyderabad. ..... PETITIONER AND 1 The Debt Recovery Tribunal, Visakhapatnam. 2 The Branch Manager, ING Vysya Bank Ltd., Ongole Branch, Ongole. 3 Amara Varalaxmi W/o. Ramalingeshwara Rao R/o. Uppugunduru, Naguluppalapadu Mandal, Prakasam District. 4 AVNR Kiran S/o. Ramalingeshwara Rao R/o. Uppugunduru, Naguluppalapadu Mandal, Prakasam District. 5 A. Sirisha D/o. Ramalingeshwara Rao R/o. Uppugunduru, Naguluppalapadu Mandal, Prakasam District. .....RESPONDENTS 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 issue a Writ of order/s more particularly one in the nature of Writ of Certiorari to call for records pertaining to Order dt. 19.01.2009 in I.A.No.39/2008 in R.P.No.22/2004 in O.A.No.639/2002 passed by the 1st respondent, and consequently set aside the same as being illegal, arbitrary and perverse and allow the claim petition in I.A.No.39/2008 and be pleased to pass Counsel for the Petitioner: MR.B.VIJAYSEN REDDY Counsel for the Respondent No.: MR.ADDEPALLI SURYANARAYANA The Court made the following: Form-NIC-OGS/WP{MSN} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.6566 of 2009 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) Heard the learned counsel for the petitioner as well as the standing counsel appearing for the 2nd respondent. It is the case of the petitioner that he purchased the property bearing flat No.4 MCH 1-8-1B2/FA/MIG(OG) 2nd floor, APHB comprising of built up area of 631.31 sq.ft with a plot area of 43.50 sq.yards undivided share of the block situated at Baghlingampally, Hyderabad, from one A.Ramalingheswar Rao, since deceased, under a registered sale deed dated 25.06.2002. His vendor, A.Ramalingheswar Rao, purchased the said flat from the A.P.Housing Board under a registered sale deed dated 03.06.2002. Prior to the sale deed dated 25.06.2002, he entered into an agreement with his vendor on 15.06.2002 and the said vendor, A.Ramalingheswar Rao, executed the sale deed during his lifetime. Respondents 3 to 5 are the legal heirs of A.Ramalingheswar Rao. It is stated that while matters stood thus, the Recovery Officer-II of the Debt Recovery Tribunal, Visakhapatnam affixed a notice of proclamation of sale on 09.07.2008 upon the main door of the flat showing the same as Item-9 in the A-Schedule Properties to be sold for recovery of the debt, on the assumption that the said property was mortgaged in favour of the 2nd respondent bank. It is stated that the petitioner purchased the said property by raising a loan from ICICI Bank. Aggrieved by the said proclamation, the petitioner filed a claim petition under Schedule-II Rule-11 of the Income Tax Act, read with Sec.29 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which was registered as I.A.39/2008 in R.P.22/2004 in OA.639/2002 before the Recovery Officer, Debt Recovery Tribunal, Visakhapatnam. The said claim petition was dismissed by order dated 19.01.2009 holding that the property sold by A.Ramalingheswar Rao to the petitioner was mortgaged in favour of the 2nd respondent bank and that he was shown as Defendant No.5 in the said O.A. filed by the 2nd respondent bank. It is stated that for recovery of the loan, the 2nd respondent bank filed O.A.639/2002 and the said O.A. was allowed holding that the respondents therein, including the vendor of the petitioner herein, were liable to pay a sum of Rs.17,52,990/- along with interest. The petitioner questions the rejection of the claim petition by the impugned order dated 19.01.2009 on the ground that the vendor of the petitioner never mortgaged the said property; no title deeds were deposited with the respondent bank, as, admittedly, the Housing Board itself registered the sale deed in favour of the vendor of the petitioner on 03.06.2002 and in the absence of any creation of mortgage by depositing of title deeds, the bank cannot proceed against the property of the petitioner. We are not inclined to express any opinion on the merits of the case as to whether there was any mortgage over the property in question or not and whether the certificate issued by the Debt Recovery Tribunal was legal or otherwise. We are of the opinion that the petitioner has an effective alternative remedy of appeal against the impugned order before the Debt Recovery Tribunal under Sec.30 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Having regard to the facts of the case, the writ petition is disposed of, permitting the petitioner to avail the remedy of appeal against the impugned order, before the Debt Recovery Tribunal under Sec.30 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, within a period of three weeks from today. If any such appeal is filed within the stipulated time, status quo, obtaining as on today with regard to possession of the property in question, shall be maintained pending disposal of such appeal, and such appeal shall be disposed of within a period of eight weeks thereafter, giving due opportunity of being heard to both parties. It is needless to mention that if no such appeal is filed within the time stipulated above, it is left open to the concerned authorities to proceed in the matter in accordance with law. There shall be no order as to costs. _____________________ V.ESWARAIAH,J ____________________________ SANJAY KUMAR,J Dated: 30.03.2009 Dsr Note: Furnish copy in two days B/o Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Debt Recovery Tribunal, Visakhapatnam. 2 The Branch Manager, ING Vysya Bank Ltd., Ongole Branch, Ongole. 3 2. 2CCs to 4. 2CD copies