IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.22013 of 2009 Between: M/s.Padmasree Theatre, Proprietrix Smt.Adusumilli Padma. … Petitioner And State Bank of India, represented by its Manager and two others … Respondents This Court made the following: HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.22013 of 2009 ORDER: - (per the Hon’ble Sri Justice A.Gopal Reddy) This writ petition by the borrower is directed against the orders of the Debts Recovery Tribunal, Visakhapatnam dated 06.10.2009 passed in M.A.No.32 of 2009 in S.A.No.7 of 2009 whereby and where under application filed to condone the delay of 43 days in filing the petition for setting aside the default order, was dismissed. The Tribunal by the impugned order after extracting the reasons mentioned by the petitioner in the affidavit for condoning the delay and the counter affidavit filed by the respondent bank, dismissed the M.A. on the ground that the respondent has already taken physical possession of the property and the petitioner was present at the time of taking such possession. The only allegation seems to be that she was not granted Rs.40 lakhs of loan. However, there are no merits in the application. This court by order dated 14.10.2009 stayed the sale of the properties subject to the condition of petitioner deposits Rs.5 lakhs on or before 11.11.2009 and a further sum of Rs.5 lakhs on or before 09.12.2009 thereafter. On deposit of the first instalment, as directed above the respondent bank is directed to consider restoration of possession of the petition schedule property to the petitioner. If the petitioner fails to pay the second instalment within the period, the stay automatically stands vacated. The bank filed its counter opposing the petition stating that the petitioner has the alternative relief of appeal as provided under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, “the Act”) against the dismissal of the M.A. by the Debts Recovery Tribunal. It is stated that on failure of the petitioner to pay the term loan amount, the respondent bank initiated recovery proceedings, for realisation of the debt by secured asset on the mortgaged property, by issuing notice under Section 13(2) of the Act dated 30.08.2008 to the petitioner and her guarantor, followed by a possession notice dated 24.11.2009 and it was published in the newspapers. After issuing the possession notice, petitioner filed S.A.No.7 of 2009 before the Debts Recovery Tribunal, which granted stay of further proceedings in I.A.No.43 of 2009, on condition of petitioner depositing Rs.One lakh, which has been complied by the petitioner in part by depositing only Rs.50,000/- by 18.02.2009 and committed default in deposit of the balance of Rs.50,000/-. Therefore, the Tribunal by order dated 11.03.2009 vacated the stay and posted the appeal to 02.04.2009. As there was no representation on the said date, the Tribunal dismissed the appeal. It is further stated that after obtaining the orders from the Collector and District Magistrate for delivery of possession of the secured asset, an advocate commissioner appointed by the Chief Judicial Magistrate, Machilipatnam in Crl.M.P.No.124 of 2009 took physical possession of the secured asset and delivered the same to the authorized officer on 29.08.2009. After taking possession of the secured asset, the above M.A.No.32 of 2009 came to be filed for condonation of the delay. The petitioner is still liable to pay a sum of Rs.24,47,712/- as on 08.11.2009 after adjusting Rs.5 lakhs deposited on 06.11.2009 apart from the future interest. The learned counsel for the respondent-bank fairly conceded that the M.A. filed by the petitioner condoning the delay may be allowed, restoring the appeal to its file with a direction to the Debts Recovery Tribunal to dispose of the appeal on merits after providing an opportunity to the parties. We have no objection for the proposal made by the learned counsel for the respondent-bank. In view of the agreement arrived by both the counsel, we set aside the order passed by the Tribunal and allow the M.A. by condoning the delay of 43 days in filing the restoration petition and also restore the S.A.No.7 of 2009 to its file, subject to the petitioner complying the interim order passed by this court, namely depositing Rs.5 lakhs on or before 09.12.2009 and on such deposit, the tribunal shall take up the appeal and dispose of the same on merits uninfluenced by any of the observations made by it while dismissing the M.A. Accordingly, the writ petition is allowed with the above direction. No order as to costs. ___________________ (A.GOPAL REDDY, J) _________________________________ (SAMUDRALA GOVINDARAJULU, J) 30.11.2009. Lmv