IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIRST DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 25895 of 2008 Between: 1 M/s. Sri Kodandaram Alloys Pvt. Limited, rep. by its Managing Director, B.D.R.V.V.Prasad S/o. B. Bangaru Naidu, R/o. Barnala Street, Veeragattam village, Srikakulam District. 2 S/o. B. Bangaru Naidu, S/o. Late Appalaswamy Naidu R/o. Barnala Street, Veeragattam village, Srikakulam District. ..... PETITIONER(S) AND 1 The State Bank of India, Veeraghattam Branch, Srikakulam District rep. by its Authorized Officer. 2 Killamsetty Rama Rao S/o. Viswanadham D.No.7-3-17A, Gonti Street, Srikakulam Town & District. .....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 appropriate writ or order or direction mostly one which is in the nature of Writ of Mandamus declaring the action of the 1st respondent in accepting the tender of the 2nd respondent and finalization of the same with regard to the property of land and Factory building with machinery shown at Sl.Nos.1 & 2 belonging to the petitioners in pursuance of the public notice for auction of sale of property dated 22.7.2008 in tender No. EA/Veeragattam/30 as illegal, irregular, arbitrary, unconstitutional unjustified and unsustainable and set aside the sale and pass Counsel for the Petitioner: MR.P.VEERA REDDY Counsel for the Respondent No.: MR.DEEPAK BHATTACHARJEE The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This writ petition is filed seeking a Writ of Mandamus declaring the action of the first respondent in accepting the tender of the second respondent and finalizing the same with regard to the properties belonging to the petitioners in pursuance of the public notice dated 22.7.2008 as illegal, arbitrary and consequently, to set aside the same. The petitioner borrowed a term loan of Rs.44.00 lakhs on 26.04.1999 from the first respondent-bank and mortgaged his properties. As the petitioners could not pay the installment due, the first respondent-Bank issued demand notices dated 19.01.2008 and 22.07.2008 under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (for short “the SARFAESI Act”) proposing to conduct sale of the mortgaged properties. The learned counsel appearing for the petitioners submits that the first respondent-Bank without issuing notice under Section 13(2) of the Act straight away initiated steps under Section 13(4) of the Act by publishing public notices dated 19.1.2008 and 22.7.2008 for sale of the property, which is illegal and arbitrary. In the counter affidavit filed by the first respondent-bank, it is stated that the notice issued under Section 13(2) of the Act is served on the borrowers and guarantors and that they failed to pay the amount in question within sixty days and, there after provisions under Section 13(4) of the Act are initiated. Be that as it may, this Writ Petition is not maintainable inasmuch as the petitioners are questioning the legality or otherwise of the notices dated 19.1.2008 and 22.7.2008 issued under Section 13(4) of the Act against which they are having an efficacious and effective alternative remedy of approaching the Debts Recovery Tribunal under Section 17 of the Act. Without availing the said remedy, they have straight away approached this Court by filing this Writ Petition. Hence, we do not see any merit in the Writ Petition and the same is dismissed. However, liberty is given to the petitioners to approach the Debts Recovery Tribunal within two weeks from today. It is made clear that since the matter is pending before this Court, the said period shall be excluded for the purpose of calculating limitation under Section 14 of the Limitation Act. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ VILAS V. AFZULPURKAR,J Dt. 01.07.2009 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD Copies