IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 28490 of 2007 Between: Angajala Teza Kishore, Minor rep. by his Mother B.V.V.Laxmi, W/o. late Bhanu Kiran R/o.Door No. 41-2-31, Old Post Office Road Krishna Lanka, Vijayawada. ..... PETITIONER AND The State Bank of Hyderabad, Regional Office, Padamatalanka, Vijayawada, rep. by its authorized Officer. . ....RESPONDENT 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 an Writ, order or direction more in the nature of Writ of Mandamus, calling for the records and declare the auction notice dated 27.11.2007 issued by the Respondent Bank with regard to the House Property consisting of two storied Building bearing Door No.26-1-104 at Nagarapalem, Guntur as arbitrary, illegal and in violation of principles of natural justice and consequently declare the same as null and void and pass such other order or further orders. Counsel for the Petitioner:MR.S.SRIDHAR Counsel for the Respondent No.: MRVENKATARAGHU RAMULU The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed seeking Writ of Mandamus declaring the action of the respondents in issuing auction notice dated 27.11.2007 under Section 13(2) of the SRFAESI Act, 2002 (Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002) as illegal, arbitrary and consequently to set aside the same. The petitioner herein is the minor represented by his mother, who is the wife of late Angajala Bhanu Kiran. Petitioner’s father Angajala Bhanu Kiran and his father Angajala Satyanarayana Jointly purchased house property from one Tummala Cheruvu Nagaratnam under a registered Sale Deed No. 13473 of 2004 dated 11.10.2004. While the matter stood thus, the mother of the petitioner came to know through a paper publication published in daily Newspaper “Eenadu” on 5.10.2007 that their property was kept under mortgage with the respondent-Bank and since the loan availed on the said property was not repaid, the respondent-Bank is putting the said property for sale through public auction and the auction date is scheduled on 4.1.2008. It is stated that after her husband’s death she is having a share in the said property and the loan is availed only by her father-in- law and if at all the respondent-Bank wants to put the property for sale they can do so by putting only the share of her father-in-law and not her share. Petitioner’s mother filed O.S.No. 217 o 2007 on the file of Principal District Judge, Guntur and the same is pending. The learned counsel appearing for the petitioner submits that when once the suit is pending, without serving notice under Section 13(2) of the Act on the petitioner, who is legal heir of the deceased Angajala Bhanu Kiran and who succeeded the property which was purchased jointly by the grand father and the father of the petitioner and mortgaged the property jointly in the bank by depositing the title deeds, sending the auction notice dated 27.11.2007 directly to the petitioner is illegal. He also submits that since they have not paid the amount the respondent-Bank issued notice and the same was acknowledged by the grand-father of the petitioner and the petitioner is in no way concerned. In the counter affidavit filed by the respondents, it is stated that as the petitioner’s father failed to repay the amount due to the Bank, the account of the petitioner’s father was classified as non- performing asset and the Bank proceeded under the SARFAESI Act (Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) by issuing notice under Section 13(2) of the Act demanding an amount of Rs. 9,19,613/- due as on 06.07.2007 within 60 days from the date of receipt of the said notice. As the petitioner’s father and grand- father failed to pay the amount due, the respondent-Bank issued notice dated 6.7.2007 under Section 13(2) of the Act on the grand father of the petitioner and again auction notice dated 27.11.2007 on the petitioner. Aggrieved by the same, the petitioner filed the Writ Petition challenging the auction notice dated 27.11.2007. This Court while ordering notice before admission granted interim stay on condition of the petitioner depositing an amount of Rs. 1,00,000/- within a period of six weeks. It is stated that the conditional order has been complied with. Be that as it may, the petitioner has an effective alternative remedy of appeal under Section 17 of the Act. Hence, we do not see any reason to interfere with the order impugned in this Writ Petition under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. However, in the facts and circumstances of the case we permit the petitioner to make a representation requesting for instalments for payment of the loan amount, to the respondent-Bank within two weeks from today and on such representation, the respondent-Bank shall consider the same and pass appropriate orders before taking any final decision. Failure of payment of any instalment amount, the bank is at liberty to take further proceedings in accordance with law. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ VILAS V. AFZULPURKAR,J Dt. 18.06.2009 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD Copies