HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO. 19428 OF 2011 Between: Dasari Suresh Chandra Mukharji, S/o D. Rambabu, aged about 36 years and one another ………….Petitioners AND The State Bank of Hyderabad, Machilipatnam Branch, Machilipatnam and one another ………….Respondents ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Mandamus declaring the action of the respondents in proceeding against the property which was given as security for the loan sanctioned to the 1st petitioner i.e vacant land admeasuring 767.10 sq. yards in Municipal Ward No. 15, near D.No. 15-319 situated at Machavaram, Machilipatnam Town, Krishna District in pursuance of the possession Notice dated 17.1.2011 as illegal and arbitrary. Brief facts of the case are that the first petitioner herein had availed a loan of Rs. 6 lakhs in the year 2008 from the first respondent-Bank and started a Dairy Farm at Machilipatnam and the second petitioner, who is his mother-in-law stood as guarantor for the said loan and mortgaged the property i.e. vacant land admeasuring 767.10 sq. yards situated at Machavaram, Machilipatnam Town. The repayment of the said loan is to be made on equal monthly instalments basis at the rate of Rs. 12,500/- per month. It is stated that the petitioner committed default in payment and therefore, the first respondent-bank issued notice dated 22.7.2010 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SRFAESI Act”). It is also stated that as the petitioner herein did not discharge the liability within sixty days, the respondent-Bank took symbolic possession of the schedule property and issued possession notice dated 17.1.2011. Aggrieved by the same, the present Writ Petition is filed. Heard the learned counsel appearing for both sides and also perused the material made available on record. Under Section 17 of the SRFAESI Act, any aggrieved person can file an appeal before the Debts Recovery Tribunal. Section 17 of the Act reads as under: “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 percent 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 s 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.” As seen from the record, the petitioner herein did not discharge the liability within sixty days and therefore, the respondent-Bank took symbolic possession of the schedule property and issued possession notice dated 17.1.2011. Be that as it may, the Supreme Court in SLP (c ) No. 10145 of 2010 dated 26th July 2010 at paragraph 27 of the judgment observed as under: “27. 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 SRFAESI 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.” In view of the facts and circumstances of the case and also in view of the above observation of the Supreme Court in SLP (C ) No. 10145 of 2010, this Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. However, the petitioner is directed to approach the Debts Recovery Tribunal, Hyderabad, within a period of two weeks from today. Till such time, the first respondent-Bank is directed not to take any coercive steps. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J _____________________ G. CHANDRAIAH, J DATE: 12.07.2011 KA Note: Furnish copy today. ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.