HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION NO. 29991 OF 2010 Between: P. Chalapathi Rao ………….Petitioners AND The General Manager, Canara Bank, Hyderabad and another ………….Respondents HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION NO. 29991 OF 2010 ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed challenging the action of the respondents in selling the petitioner’s mortgaged property admeasuring Ac.58.25 cents of land with godown covered by AC Sheets Roof situated in Sy.No.497/A (old) in Raghavendra Nagar, Kurnool Town, pursuant to the possession notice dated 6.10.2010 without giving any sale notice to the petitioners as illegal and arbitrary. The petitioner obtained loan from the 2nd respondent-bank for an amount of sixty lakhs by mortgaging his landed property in the year 2005 and that during the year 2007 the petitioner could not repay the loan instalments due to floods and that from the year 2008 onwards he was continuously repaying the outstanding amount. While so the 2nd respondent bank issued notice under Section 13(2) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the Act”) demanding to pay the outstanding amount. The main grievance of the petitioner is that though he approached the Manager of the 2nd respondent bank and to give fresh calculation memo for actual outstanding amount to be paid by him, the bank issued the possession notice dated 6-10-2010 informing him that they have taken the symbolic possession as the petitioner failed to repay the outstanding amount. A plain reading of Section 17 of the reveals that if any person aggrieved may prefer an appeal to the Debts Recovery Tribunal within forty five days from the date on which such measures had been taken. The relevant portion reads as under: “17. Right to appeal:- (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken. (2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy five per cent of the amount claimed in the notice referred to in sub-section (2) of Section 13: Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section. (3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder.” Be that as it may, the Supreme Court in SLP © No. 10145 of 2010 dated 26th July 2010 observed as under: “It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” Following the above Supreme Court Judgment, the Writ Petition is dismissed and the petitioner is at liberty to approach the Debts Recovery Tribunal. There shall be no order as to costs. _______________________ GHULAM MOHAMMED, J ____________________ N. RAVI SHANKAR, J DATE: 6-12-.2010 kk/KA HON'BLE MR JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE N. RAVI SHANKAR WRIT PETITION NO. 29991 OF 2010 6-12-2010