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 SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 5113 of 2009 Between: Vikaram Publishers rep. by its Managing Partner R. Rama Swamy, S/o. Late Sriramulu R/o.30-4-15, Ramswamy Street, Durga Agraharam, Vijayawada-2. ..... PETITIONER AND 1 The Authorized Officer, ING VYSYA Bank Limited, G.S. Estate, Nizam Shahi Road, Hyderabad. 2 M/s. Amar Book Distributors, rep. by its Proprietor, Gogula Amarnadh, S/o. Late Veeresham R/o. D.No. 15-1-51, Old Feelkhana, Hyderabad. 3 Gogula Uma Shankar S/o. Late Veeresham R/o. D.No. 15-1-51, Old Feelkhana, Hyderabad. 4 Gogula Ramu S/o. Late Veeresham R/o. D.No. 15-1-51, Old Feelkhana, Hyderabad. 5 Gogula Shiva Kumar S/o. Late Veeresham R/o. D.No. 15-1-51, Old Feelkhana, Hyderabad. 6 The District Collector, Hyderabad, Nampally Station Road, Hyderabad. 7 The Thasildar, Nampally, Hyderabad. .....RESPONDENT(S) 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 to issue an appropriate order direction more particularly in the nature of Mandamus declaring the notice of auction sale issued by the 1st respondent published in the English Daily Deccan Chronicle, dt. 22.02.2009 in respect of the property bearing Municipal Door No.15-1-51, admeasuring 180 sq. yds. situated at Old Feelkhana, Hyderabad as being illegal, arbitrary and malafide. Counsel for the Petitioner: MRSYED SHAREEF AHMED Counsel for the Respondent No.: MR.ADDEPALLI SURYANARAYANA The Court made the following : ORDER: (Per Sri V.Eswaraiah, J.) Petitioner seeks a writ of mandamus declaring the notice of auction sale issued by the 1st respondent published in the English Daily Deccan Chronicle dated 22.2.2009 in respect of the property bearing Municipal Door No.15-1-51 admeasuring 180 sq.yards situated at Old Feelkhana, Hyderabad, as being illegal and arbitrary. The case of the petitioner is that the property bearing Municipal Door No.15-1-51 admeasuring 180 sq.yards situated at Old Feelkhana, Hyderabad, was mortgaged by respondents 2 to 5 along with the guarantors in favour of the 1st respondent and they committed default in payment of the loan amount and therefore the 1st respondent bank invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’) and issued the impugned notice of auction sale to be conducted on 26.3.2009. It is stated that respondents 2 to 5 were due and liable to pay a sum of Rs.13,00,000/- to the petitioner and when they failed to pay the same, the petitioner filed O.S.No.42 of 2004 on the file of the VII Additional District and Sessions Judge (FTC), Vijayawada, for recovery of the said amount with interest and the said court decreed the suit on 12.12.2007 with costs. For realization of the decretal amount, the petitioner filed E.P.No.28 of 2008 for recovery of Rs.18,35,554/- and also sought attachment and sale of the property situated at Hyderabad. The said E.P.No.28 of 2008 was transferred to the Chief Judge, City Civil Court, Hyderabad for attachment and sale of the property which is the subject matter of the notification issued by the 1st respondent. It is stated that respondents 2 to 5 also issued cheques for payment of the amount, but the cheques bounced and consequently the petitioner filed C.C.No.342 of 2003 on the file of the III Additional Chief Metropolitan Magistrate, Vijayawada. It is also stated that the District Collector, Hyderabad directed the Tahsildar, Nampally, to attach the said property in pursuance of the order passed by the learned III Additional Chief Metropolitan Magistrate, Vijayawada in the said C.C.No.342 of 2003. Admittedly, the 1st respondent bank is not a party either to the suit O.S.No.42 of 2004 on the file of the VII Additional District and Sessions Judge (FTC), Vijayawada, or C.C.No.342 of 2003 on the file of the III Additional Chief Metropolitan Magistrate, Vijayawada. The learned counsel for the 1st respondent bank submits that the said property was mortgaged in favour of the 1st respondent bank long prior to the filing of the suit in O.S.No.42 of 2004 and C.C.No.342 of 2003 and the bank is a secured creditor. The petitioner only questions the sale notice on the ground that the sale of the said property shall be as per Rule 8(5)(b) and (c) of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as ‘the Rules’) made under the Act, by holding public auction but not by inviting tenders from the public. Admittedly, the petitioner is not questioning the legality or validity of the proceedings initiated by the 1st respondent bank under the Act. A perusal of the said notice goes to show that the 1st respondent bank initiated action under Section 13 of the Act and possession of the said property was also taken on 30.10.2004 under Rule 8(1) of the Rules by delivery/affixing of possession notice under the provisions of Section 13(4) of the Act and notice of taking such possession was also published in daily news papers i.e., New Indian Express and Andhra Jyothi both dated 23.2.2007 under Rule 8(2) of the Rules. Under Rule 8(5) it is open to the authorized officer of the bank to dispose of any part or whole of the immovable secured asset either by way of inviting tenders from the public or by holding public auction or by private treaty. The only grievance of the petitioner is that the said property shall not be disposed of by inviting tenders from the public but it shall be disposed of by holding public auction. We are unable to accept the said contention of the petitioner. We are of the opinion that the impugned auction notice, which was published in the daily newspaper is to draw the attention of the interested persons, who want to purchase the said property by submitting tenders. In fact, on a perusal of the impugned notice, it is clear that auction of the said schedule property is through the process of inviting tenders-cum-auction. Therefore, inviting tenders is always for public auction only. Therefore, no prejudice will be caused to any interested persons if the said property is disposed by way of inviting tenders from the public. We do not see any merit in the writ petition. The writ petition is accordingly dismissed. No order as to costs. ________________ V.ESWARAIAH, J. _________________ SANJAY KUMAR, J. 30.3.2009 kpr