THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N. RAVI SHANKAR W.P.No.32338 OF 2010 ORDER: (Per GHULAM MOHAMMED,J) This writ petition is filed declaring the impugned sale notice dated 26.11.2010 issued by the second respondent for sale of the property which is part and parcel of the property in Survey No. 1/1, H.No. 2-8-24/C/12A, Farhan Street, Peddapalli admeasuring 250 square yards as illegal and consequently to set aside the auction notice dated 26.11.2010 issued by the second respondent. It is the case of the petitioner that he is the borrower and he has been granted Agriculture Term Loan of Rs.2.75 lakhs for setting up a dairy unit to be run by his wife and children, for which, he has given security by mortgaging the immovable property referred to supra and also given necessary surety. Since the petitioner failed to pay the loan amount, the second respondent initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the Act”). The first respondent-bank also filed a civil suit for recovery of the loan amount vide O.S.No.31 of 2010 on the file of the Senior Civil Judge, Peddapalli. The first respondent instructed the Branch Manager, State Bank of Hyderabad, Peddapalli Main Branch, Karimnagar to put a hold on the account of the petitioner and pursuant thereto, the salary account of the petitioner was attached. Learned counsel for the respondents while placing reliance on point Nos. 3 and 4 of Agricultural Debt Waiver and Debt Relief Scheme, 2008 (for short “the Scheme”) contended that though the second respondent issued notice under Section 13(2) of the Act, the same was refused by the petitioner and the cover was returned unserved and hence, notice was published in Eenadu Daily News Paper on 18.03.2010, for which, the petitioner has submitted his objections on 17.04.2010 saying that the buffaloes in his dairy died and the respondent-bank through letter dated 24.04.2010 replied stating that as the animals are not covered under insurance, no claim was sent to the insurance company by the branch. Point No.3.3 of the Scheme is extracted here under: ‘Investment Loan’ means a) investment credit for direct agricultural activities extended for meeting outlays relating to the replacement and maintenance of wasting assets and for capital investment designed to increase the output from the land, e.g. deepening of wells, sinking of new wells, installation of pump sets, purchase of tractor/pair of bullocks, land development and term loan for traditional and non-traditional plantations and horticulture; and b) investment credit for allied activities extended for acquiring assets in respect of activities allied to agriculture e.g. dairy poultry farming, goatery, sheep rearing, piggery, fisheries, bee-keeping, green houses and biogas. Point No. 4 of the Scheme is extracted here under: Eligible amount 4.1 The amount eligible for debt waiver or debt relief, as the case may be (hereinafter referred to as the ‘eligible amount’) shall comprise of: a) in the case of a short-term production loan, the amount of such loan (together with applicable interest): i) disbursed up to March 31, 2007 and overdue as on December 31, 2007 and remaining unpaid until February 29, 2008; ii) restructured and rescheduled by banks in 2004 and in 2006 through the special packages announced by the Central Government, whether overdue or not; and iii) restructured and rescheduled in the normal course up to March 31, 2007 as per applicable RBI guidelines on account of natural calamities, whether overdue or not b) in the case of an investment loan, the instalments of such loan that are over due (together with applicable interest on such instalments) if the loan was: i) disbursed up to March 31, 2007 and overdue as on December 31, 2007 and remaining unpaid until February 29, 2008; ii) restructured and rescheduled by banks in 2004 and in 2006 through the special packages announced by the Central Government; and iii) restructured and rescheduled in the normal course up to March 31, 2007 as per applicable RBI guidelines on account of natural calamities. Explanation: In the case of an investment loan disbursed up to March 31, 2007 and classified as non performing asset or suit filed account, only the instalments that were overdue as on December 31, 2007 shall be the eligible amount. On the other hand, learned counsel for the respondents contended that the petitioner is entitled to debt relief up to 25% of the outstanding amount in the event of his paying 75% of the outstanding amount. In support of his contention, he has drawn our attention to paragraph “6” of the Agricultural Debt Waiver and Debt Relief Scheme, 2008, which reads as under: “In the case of ‘other farmers’ there will be a one time settlement (OTS) Scheme under which the farmer will be given a rebate of 25 per cent of the ‘eligible amount’ subject to the condition that the farmer pays the balance of 75 per cent of the ‘eligible amount’. “ The petitioner availed agriculture term loan for setting up dairy unit and since petitioner failed to pay the loan instalment amounts, the second respondent initiated proceedings under the Act apart from filing suit. The grievance of the petitioner is that as per Rule 8(5) of the Security Interest (Enforcement) Rules, 2002, the respondents have to consult the petitioner before auctioning the property but they have not done so. According to respondents, since petitioner has not paid 75% of outstanding amount, he is not entitled to any rebate. Since these are all questions of fact, we are not inclined to exercise our jurisdiction under Article 226 of the Constitution of India. The petitioner is at liberty to approach the Debts Recovery Tribunal by filing an application under Section 17 of the Act, which have to be examined by the tribunal while dealing with the application. Under the circumstances, the petitioner is directed to pay Rs.50,000/- by tomorrow and an amount of Rs.50,000/- within a period of one week from today. Meanwhile, the respondents are directed not to take any coercive steps. The writ petition is dismissed accordingly. No costs. GHULAM MOHAMMED,J N. RAVI SHANKAR,J Dated : 27.12.2010 Note: Operative portion by wire at party’s costs b.o. lvl THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE N. RAVI SHANKAR W.P.No.32338 OF 2010 (Per GHULAM MOHAMMED,J) Dt. 27.12.2010