IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO : 7086 of 2008 Between: Kanyaboyana Jaihind, S/o. Late Ballaiah, R/o. H.No. 17- 2-309/A/7, Kurmaguda, Saidabad, Hyderabad. ..... PETITIONER AND 1. State Bank of Hyderabad, High Court Branch, Hyderabad, Rep. by its Branch Manager. 2. Sri Mohd. Abdul Naseeb Khan, S/o. M.A. Raqueeb Khan, R/o. 11-1-1204/1/3, Habeeb Nagar, Mallepally, Hyderabad. .....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 issue a Writ, Order or Direction more especially one in the nature of Writ of Mandamus to set aside the auction proceedings of the residential house bearing No. 17-2- 309/A/7, KUrmaguda, Saidabad, Hyderabad conducted on 30-1-2008 and notice under Section 13(2) of SARFAESI Act, 2002 by declaring the same as illegal, arbitrary, contrary to the provisions of SARFAESI Act, 2002 and Rules of the Security Interest (Enforcement) Rules, 2002. Counsel for the Petitioner:MR.B.CHANDRASEN REDDY Counsel for the Respondent No.: . The Court made the following : THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.NO.7086 OF 2008 ORAL ORDER: The petitioner contends that he had availed certain credit facilities from the High Court Extension Branch of the State Bank of Hyderabad. Alleging that the petitioner has committed default in liquidating his liability, notice under Section 13(2) of the Sucuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (henceforth referred to as ‘the Act’) dated 02-08-2007 has been served on him on 08- 08-2007. It is also asserted that the petitioner has deposited a sum of Rs.90,000/- towards the said loan account on 1st October 2007. It is further alleged that steps have been taken to sell the mortgaged property for realizing the secured assets in terms of Subsection (4) of Section 13 of the Act and notice to this effect has, in fact, been issued by the Bank only on 10-01-2008 and in furtherance thereof, it has also conducted the auction of the secured asset on 30-01-2008. It is alleged that on 24- 03-2008, a Bankers Cheque dated 13-02-2008 drawn in a sum of Rs.11,07,168/- together with an undated letter, has been delivered pointing out that the secured asset has been sold at the auction conducted on 30-01-2008 for a sum of Rs.19,40,000/- and that after adjusting and liquidating the loan, the surplus amount of the sale proceeds is transmitted by way of the Bankers Cheque. The learned counsel for the petitioner contends that in terms of Rule 9 of the Security Interest (Enforcement) Rules 2002, no sale of immovable property shall take place before the expiry of 30 days from the date on which the pubic notice of sale is published in newspapers or the date on which the notice of sale has been served to the borrower. It is further contended that since the notice of the proposed auction itself was dated 10-01-2008, the respondent Bank could not have sold the asset by way of a public auction on 30- 01-2008 without the time limit of 30 days expiring, and hence, the transaction of sale of the secured asset carried out is vitiated. When the attention of the learned counsel has been drawn to Section 17 of the Act, where any aggrieved person is entitled to make an application to the Debts Recovery Tribunal having the Jurisdiction in the matter, within 45 days from the date on which such measures have been taken, the learned counsel would point out that with a view to frustrate his right to approach the Debts Recovery Tribunal, the respondent Bank has purposefully delayed the communication enclosing the Bankers Cheque and, therefore, he had to necessarily be given appropriate time to move the Debts Recovery Tribunal before he is actually and physically dispossessed of the property in question. The learned counsel would further assert that the petitioner is in possession of the property in question and any attempt made by the respondent Bank to dispossess him at this stage could be frustrating the rights available to him under law from being availed. In this view of the matter, the 1st respondent is directed not to dispossess the petitioner from the dwelling house bearing No.17-2-309/A/7, Kurmaguda, Saidabad, Hyderabad, for a period of fifteen days, so as to enable the petitioner to approach the Debts Recovery Tribunal in the mean time and secure appropriate orders therefrom. With this, the writ petition stands disposed of at the stage of admission. -------------------------------- Nooty Ramamohana Rao, J Note: Issue copy by tomorrow. (bo) mrk 1st April 2008 ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{SPJS}