THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE NOUSHAD ALI W.P.No.398 of 2010 Date of Order: 01-02-2010 Between: 1. Yarlagadda Raja Gopala Rao and others. …Petitioners And 1. Indian Bank, a Public Sector Undertaking having its Head Office at Chennai and braches amongst other places at Governorpet, Vijayawada and another. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE NOUSHAD ALI W.P.No.398 of 2010 Oral Order: (Per the Hon’ble Sri Justice A.Gopal Reddy) 1. Petitioners, who stood as guarantors for the loan borrowed by one Yogeswara Rao from respondent No.1—Bank by mortgaging their title deeds, filed this writ petition for declaring the demand notice dated 03-09-2009 issued under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act”), possession notice dated 24-11-2009 issued under Section 13(4) of the SARFAESI Act and auction notice/notification dated 09-01-2010, fixing the date of auction as 11-02-2010 are violative of Rules 3 and 8(2) of Security Interest (Enforcement) Rules, 2002. The petitioners contend that the said documents were not returned to them. 2. Learned counsel for the petitioners has not disputed the fact that against taking possession of the secured asset under Section 13(4) of the SARFAESI Act and issuing auction notice an appeal lies under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal, but contends that the Bank has not followed the procedure for issuing such possession notice under Section 13(4) of the SARFAESI Act and consequential auction notice dated 09-01-2010. 3. The issue involved in the present writ petition is a question of fact, which cannot be decided in a summary proceeding under Article 226 of the Constitution. 4. In view of the fact that an effective alternative remedy of appeal is available under Section 17 of the SARFAESI Act and in view of the disputed questions of fact are involved in the matter, we are not inclined to entertain the writ petition. 5. Since the auction is scheduled to be held on 11-02-2010, the respondent—Bank can proceed with the auction by opening the tenders, but the same should not be finalized till 20-02- 2010, on condition of the petitioners depositing a sum of Rs.25,00,000/- (twenty five lakhs only) with the respondent—Bank by the said date and on such deposit the petitioners can also file an appeal before the Debts Recovery Tribunal and seek appropriate orders to dispense with the deposit of the amount. In default of payment of the amount, the bank is at liberty to proceed with the finalization of the auction by 21-02-2010. 6. With the above observations the writ petition is dismissed. No costs. ______________ A.GOPAL REDDY, J. _____________ NOUSHAD ALI, J. 01-02-2010 Murthy