IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRD DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.4144 of 2009 Between: Bolla Deepthi D/o.Late Veera Kanaka Radha Krishna R/o.23B-8-8, Sai Vihar, R.R.Peta, Eluru, W.G.District. ..... PETITIONER AND 1 Dhanalakshmi Bank, 4-12-40, Kortipadu Main Road, Guntur, Guntur District. 2 Veeranki Ammana Rao S/o.Ramaiah Pedatummidi Village, Bantumilli Mandal, Krishna 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 to issue any writ order or direction more particularly a writ in the nature of Mandamus declaring the action of the respondent No.1 in issuing the auction notice dt.13.02.2009 proposing to auction the schedule property given as collateral security as mentioned in the notice for sale on 16.3.2009 in the absence of any continuation of guarantee deed executed by the petitioner as illegal, arbitrary and unconstitutional and violative of principles of natural justice and consequently declare that the respondent No.1 cannot proceed with the sale on 16.3.2009 over the schedule property without there being any continuation guaranteed deed and without giving opportunity to raise objections under Section 13(2) of 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security of Security Interest Act by withdrawing the auction notice dt. 13.2.2009 in the interest of justice. Counsel for the Petitioner:MR.B.P.RAJU Counsel for the Respondent No.: . The Court made the following: Form-NIC-OGS/WP{KURR} THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT PETITION No.4144 of 2009 ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) In this writ petition, the petitioner questions the impugned notice issued by the respondent bank, dated 13.02.2009 under Rules 8(6) of the Security Interest (Enforcement) Rules, 2002. The petitioner contends that she had not been given any opportunity before issuing the impugned notice, under which the property was put in public auction, to be held on 16.03.2009 for non- payment of loan amount by the 2nd respondent. It is admitted in the affidavit filed in support of the writ petition that the father of the petitioner stood as guarantor to the 2nd respondent who is said to be the borrower. The contention, however, raised by the petitioner is that the notice schedule property is her ancestral property, belongs to her grandfather, and as such the petitioner has an interest and the guarantee by the father is not binding upon her. It is evident from the impugned notice that earlier to the impugned notice the Bank issued demand notice under Sec.13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”), dated 14.09.2007 calling upon the borrower as well as the guarantors to pay the amount due within a period of 60 days, and in spite of receipt of the notice, since there was neither payment of any amount nor reply to the said notice, the bank issued further proceedings dated 06.11.2008 under Sec.13(4) of SARFAESI Act. Even thereafter, the same is not questioned either by the borrower or by the guarantors. Therefore, the impugned notice has been issued under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002, informing that the schedule property will be sold on 16.03.2009 in public auction or private treaty. Since the aforesaid action of the bank squarely falls within the measures to be taken by the Bank under Sec.13(4) of the SARFAESI Act, an effective alternative remedy of appeal before the Debt Recovery Tribunal under Sec.17 of the SARFAESI Act is available to the petitioner, and as such, invocation of jurisdiction under Article 226 of the Constitution of India, without exhausting the said alternative remedy is wholly untenable, as the disputed questions of fact which the petitioner seeks to contend are to be adjudicated in the appeal. In view of the same, the writ petition is devoid of merits, and is, liable to be dismissed. However, since the petitioner is legal representative of the guarantor and she claims to be not aware of the proceedings taken against the borrower and the guarantor, she is granted two weeks time, enabling her to file an appeal before the Debt Recovery Tribunal under Sec.17 of the SARFAESI Act and agitate her contentions before it. Subject to the above observations, the writ petition is dismissed. ___________________ V.ESWARAIAH,J ___________________________ VILAS V.AFZULPURKAR,J Dated:03.03.2009 Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Dhanalakshmi Bank, 4-12-40, Kortipadu Main Road, Guntur, Guntur District. 2 2 CD copies