IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 23858 of 2007 Between: 1 Katta Venkata Sridevi, W/o. K.V.N.M.V. Prasada Raju, R/o. Flat No. 302, 3rd Floor, Rajyuvaraj Towers, 3rd Ward, Bhimavaram, West Godavari District. 2 K.V.N.M.V. Prasada Raju, S/o. Satyanarayana Murthy, R/o. Flat No. 302, 3rd Floor, Rajyuvaraj Towers, 3rd Ward, Bhimavaram, West Godavari District. ..... PETITIONER(S) AND 1 Authorized Officer, Canara Bank, Bhimavaram Branch, Bhimavaram, West Godavari District. 2 Canara Bank, Bhimavaram Branch, rep. by its Branch Manager, Bhimavaram, West Godavari District. .....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 a writ, order or direction more particulalry one in the nature of Writ of Mandamus declaring the action of the respondents in insisting the petitioners to vacate from their residential flat property bearing flat No. 302 situated in 3rd floor, Rajyuvaraj Towers, 3rd Ward, Bhimavaram Town, West Godavari District pursuant to possession notification dt. 31.10.2007 published in West Godavari District Edition of Eenadu Telugu Daily Newspaper as illegal, irregular, arbitrary, without jursidiction and violaotve of the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interst Act, 2002 and rules framed thre under and offends articles 14, 21 and 300-A of Constitution of India and consequeitny direct the respondents not to disposees the petitioners from their said float property and to pass such toher orders or order as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.NIMMAGADDA SATYANARAYANA Counsel for the Respondent : MR.DEEPAK BHATTACHARJEE FOR R12.12.07,VAK-1&2 The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR W.P.No.23858 of 2007 ORDER: (Per Ghulam Mohammed, J) This writ petition is filed seeking a writ of Mandamus to declare the action of the respondents in insisting the petitioners to vacate from their residential flat, property bearing Flat No.302 situated in 3rd floor, Rajyuvaraj Towers, 3rd Ward, Bhimavaram Town, West Godavari District pursuant to possession notification dated 31.10.2007 published in Eenadu Daily, West Godavari District Edition, as illegal, arbitrary. 2. The petitioners have availed the loan of Rs.10,00,000/- on 22.07.2005 for purchase and construction of the said flat from the 2nd respondent Bank and the loan was repayable in monthly instalments at the rate of Rs.10,000/- for 15 years. The petitioner could not pay the instalments due to unfavourable conditions prevailed in business. The first respondent issued possession notification dated 31.10.2007. It was mentioned in the notification that the petitioners had failed to repay the loan of Rs.10,00,000/- with contractual rate of interest at the rate of 12.25% from 22.07.2005 onwards. Thereafter, the petitioners have requested the respondents to drop any action in respect of the property as the respondents did not issue a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( for short ‘the Act’ ) to them before the said notification. 3. A detailed counter affidavit is filed stating inter alia that the petitioners have committed default in payment of instalments and loan account became non performing asset. A notice under Section 13 (2) of the Act was issued to repay the loan amount within 60 days and the same was acknowledge by the petitioners on 24.7.2007. The petitioners did not make any representation to the said notice. Thereafter, a notice under Section 13(4) of the Act was issued and symbolic possession of the property was taken. The factum of taking possession was reflected in the notification, dated 31.10.2007. 4. The learned counsel for the petitioners contended that the petitioners could not pay the instalments due to unfavourable conditions in the business and since the loan obtained by the petitioners is a housing loan which would be payable in 15 years, the respondent bank ought not to have taken the extreme step of auctioning the property. 5. We have perused the record. It has to be seen that the petitioners can avail the alternative remedy by way of appeal under Section 17 of the Act against the proceedings under Section 13 (4) of the Act. Once the alternative remedy is provided, the petitioners cannot invoke the writ jurisdiction. Apart from that, once the petitioners committed default in payment of instalments, the petitioners cannot take the plea that the loan can be payable in 15 years. The petitioners are under the obligation to hand over the physical possession of the mortgaged property to the respondent Bank and the respondent Bank is entitled to sell the same. Therefore, we are not inclined to exercise any equitable jurisdiction in this case. But however, in the circumstances, we deem it appropriate to permit the petitioners to make a representation to the respondent Bank for restoration of loan account and for facility of payment of further amount by way of instalments. 6. Hence, the writ petition is disposed of. The petitioners are permitted to make a representation to the respondent Bank for restoration of loan account and for facility of payment of further amount by way of instalments, within a period of four weeks from the date of receipt of a copy of this order, and on making such representation, the respondent Bank may consider the same and pass appropriate orders in accordance with law. Till such time, the respondent Bank shall not be taken any coercive steps. _____________________ GHULAM MOHAMMED,J _____________________ VILAS V. AFZULPURKAR 22-06-2009 Stp ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{MJA}