IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.3486 of 2008 Between: Sk. Md. Khaleel S/oSk. Mastan Guntur, Guntur DIstrict. ..... PETITIONER AND 1 The Branch Manager, Union Bank of India, Lakshmipuram Branch, 80 Feet Road, Guntur, Guntur District. 2 Authorised Officer, Union Bank of India, Regional Office, Natraj Complex, Kalesara Rao, Vijayawada, Krishna District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue any writ or order direction more particularly one in the nature of writ of mandamus declaring the action of the respondents herein issuing auction notice dt. 2-2-2008 for sale of petitioner's house property bearing H.No. 5-25-16, 3/1, Brodipet Guntur admeasuring 583 sq. yds together with commercial Complex constructed thereon without giving notice under Sec. 8(1) of the Securitization Act as illegal, arbitrary null and void and for a consequently set aside the auction notice dt.2-2-2008 which was scheduled to be held on 21-2-2008. Counsel for the Petitioner:MR.K.SRINIVAS Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION No.3486 of 2008 ORDER: (per the Hon’ble Sri Justice V.Eswaraiah) The petitioner availed two term loans of Rs.22,00,000/- and Rs.4,00,000/- respectively from the respondent Bank and as a security, the petitioner created an equitable mortgage in favour of the respondent bank in respect of his immovable property, being the house bearing No. 5-25- 16,3/1 Brodipet, Guntur, admeasuring 583 sq. yards of land along with a commercial complex. The respondent bank fixed 6o monthly instalments for repayment of the said loan. As the petitioner failed to repay the instalments promptly and in spite of repeated demands, the account of the petitioner was declared as a ‘non-performing asset’. Therefore, the respondent Bank invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act”) and issued notice dated 14-06-2006 under Section 13(2) of the SARFAESI Act calling upon the petitioner to pay a sum of Rs.26,85,071/- together with interest, within sixty days. The petitioner failed to repay the same even after expiry of the 60 days. Therefore, possession notice dated 12-02-2008 under Section 13(4) of the SARFAESI Act has been issued to the petitioner to handover/surrender possession of the immovable property of the house bearing No.5-25-16,3/1 Brodipet, Guntur, admeasuring 583 sq. yards of land along with the commercial complex, failing which the Bank threatened to take possession of the same. Questioning the said notice, this writ petition has been filed. This Court, on 21-02-2008, while ordering notice before admission, granted status-quo obtaining as on 21-02-2008, subject to the condition of the petitioner depositing a sum of Rs.5,00,000/- within six weeks and the time stipulated in the said order was extended thereafter, upto 08-05- 2008, by order, dated 04-04-2008. Learned counsel for the petitioner submits that the said conditional order has been complied with by paying a sum of Rs.2,00,000/- on 18-03-2008 and Rs.3,00,000/- on 06-05-2008 respectively. It is further stated that the petitioner also made representation dated 05-03-2008, requesting the respondent bank to consider his case sympathetically and reschedule the remaining unpaid part of the term loan and expressed his willingness to pay the instalments regularly without fail in future. We are not inclined to express any opinion with regard to the compliance or non-compliance with the provisions of Section 13 of the SARFAESI Act or declaring the account of the petitioner as a non-performing asset and initiating action under Section 13 of the SARFAESI Act. The petitioner has got an effective alternative remedy under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal. Considering the facts of the case, we are of the opinion that it would be just and proper to permit the petitioner to avail the remedy under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal. Accordingly, we dispose of the writ petition permitting the petitioner to approach the Debt Recovery Tribunal under Section 17 of the SARFAESI Act within two weeks from today. Status-quo obtaining as on today shall be maintained for a period of two weeks from today. There shall be no order as to costs. ________________ V.ESWARAIAH, J __________________ SANJAY KUMAR, J Date : 30-03-2009 Prv ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{VSMI}