IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE NOUSHAD ALI WRIT PETITION NO : 27156 of 2009 Between: M/s.A.N.Steels, Regd. Partnership firm, Having its factory at Moduvalasa, Denkada Mandal, Vizianagaram District Rep. by its Managing Partner Mr.Alavilli Nanaji & 3 others. ..... PETITIONERS AND Union Bank of India, Rep. by its Branch Manager, M.V.P. Colony Branch, Plot No.241, Sector-4, MVP Colony, Visakhapatnam & Another. .....RESPONDENTS The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No. 27156 OF 2009 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) On committing default in repayment of loan installments, the petitioners-borrowers were served with notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘Act’) on 6.8.2009, to which, the petitioners have submitted a representation on 5.10.2009 requesting the respondent-Bank to allow operation of bank account for the purpose of purchase of raw material and to extend the cooperation to support the unit. But, according to the petitioners, without considering the reply to the notice, dated 6.8.2009, the Bank issued notice under Section 13(4) of the Act on 24.10.2009 and threatened to take possession of the secured properties. The notice issued under Section 13(4) of the Act was also annexed to the writ petition as Ex.P.7. Questioning the said notice, the petitioners invoked the appellate jurisdiction of the Debts Recovery Tribunal by filing S.A.No.169 of 2009 in which, they have also filed I.A.No.645 of 2009 seeking to stay the proceedings pursuant to the notice, dated 24.10.2009 issued under Section 13(4) of the Act. The Tribunal by its order, dated 26.11.2009 dismissed the said I.A. holding that no tenable objections have been raised to the notice issued under Section 13(2) of the Act viz., the notice issued is not in accordance with the Act and that with regard to the other allegations namely, non-sanction of additional term loans and the bank advising the petitioners to arrange private funds for running the unit etc., cannot be considered by the Tribunal. On dismissal of the above I.A., the present writ petition is filed questioning the notice issued by the Bank under Section 13(4) of the Act, dated 24.10.2009 and the consequential order passed by the Tribunal on 26.11.2009 in I.A.No.645 of 2009 in S.A.No.169 of 2009. When the writ petition was taken up for admission on 14.12.2009, it was pointed out to the learned counsel for the petitioners that when the notice under Section 13(4) of the Act is subject-matter of appeal before the Debts Recovery Tribunal as to how a writ can be entertained for the same relief, for which, the learned counsel sought time to today. Today, the learned counsel for the petitioners filed an additional affidavit stating that the petitioners complied with the revised terms and conditions of letter of approval, dated 31.3.2009 and in consideration whereof, the respondent-Bank released Rs.24.00 lakhs towards the working capital terms loan in April, 2009 and thereafter, the balance working capital of Rs.26.00 lakhs was not released on the ground that the loan account was classified as non-performing asset. But, the learned counsel now contends that the notice issued under Section 13(4) of the Act is not the subject-matter of the appeal, which was, in fact, issued only on 27.11.2009 for taking possession of the assets and therefore, the writ petition can be entertained. As a matter of fact, in the affidavit filed along with the writ petition, the petitioners categorically asserted that the notice was issued under Section 13(4) of the Act on 24.10.2009 and the same was sought to be stayed before the Tribunal in I.A.No.647 of 2009. In that view of the matter, we do not see any merit in the contention advanced by the learned counsel for the petitioners that the notice issued under Section 13(4) of the Act was not the subject-matter of appeal before the Tribunal. The Apex Court in the decision reported in B.M.R.D.A, Bombay v. Gokak Patel Volkart Ltd. & Others[1] at para 13, observed as under: “13. We are of the view that the point taken by the appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ-petitioner actually had availed of that remedy. The writ-petitioner’s appeal before the Statutory Authority was pending. In that view of the matter this writ petition should not have been entertained.” Therefore, the present writ petition cannot be entertained when the statutory appeal is pending before the Debts Recovery Tribunal on the same subject. The writ petition is accordingly dismissed granting liberty to the petitioners to move the Tribunal for appropriate relief. No order as to costs. _________________ (A. GOPAL REDDY, J.) _________________ (NOUSHAD ALI, J.) DECEMBER 21, 2009 TSR [1] (1995) 1 SCC 642 = JT 1995 (1) SC 155