HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE MR JUSTICE G. CHANDRAIAH WRIT PETITION NO. 2963 OF 2010 Between: Talasila siva Rama Krishna Prasad S/o Late Satynarayana ..... PETITIONER AND 1. Indian Bank, Gandhi Nagar Branch and three others ...RESPONDENTS ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed in the nature of Writ of Mandamus declaring the action of the respondent-bank in proceeding under Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act 2002 (for short “the SRFAESI Act”) and consequently auctioning the property of 2/3rd share of House No. 54-15- 1/2 in R.S.No. 452/1A and 453/2A equivalent to 338.8 square yards out of 10.5 cents equal to 498.75 square yards and RCC building therein of Srinagar Colony, Ring Road, Vijayawada, of the petitioner on the ground that the vendor of the petitioner was the guarantor for a loan transaction even though the said property is not mortgaged as collateral security by depositing the original title deeds as arbitrary and illegal. Brief facts of the case are that the petitioner purchased 2/3rd share of House bearing No. 54-15-1/2 in R.S.No. 452/1A and453/2A equivalent to 338.8 square yards out of 10.5 cents equivalent to 498.75 square yards and RCC building of Srinagar Colony, Ring Road, Vijayawada under two registered sale deeds bearing Nos 900/1999 and 910/1999 of S.R.O Gunadala from Adari Babu Durga Prasad and the petitioner is the bonafide purchaser and since the date of purchase he has been in peaceful possession and enjoyment of the property. It is stated that at the time of execution of the registered sale deed, his vendor handed over all the original title deeds and link documents. While so, the first respondent-Bank has taken the possession of the said property under Section 14 of the SRFAESI Act stating that one M/s Sudha Fastners obtained a loan from the Bank and the vendor of the petitioner was the guarantor for the said loan and subsequently, the principal debtor and the guarantor failed to repay the said loan, the Bank initiated the proceedings under the SRFAESI Act for recovery of the loan amount. It is stated that the vendor of the petitioner is the guarantor and the Bank did not proceed with the properties mortgaged by the principal debtor who obtained loan by mortgaging various properties. The petitioner came to know that the said property was auctioned vide auction notice dated 13.10.2009 and the sale is not yet confirmed to the highest bidder and if he is deprived of the property it would cause great hardship and irreparable loss, as the value of the property is very high. Hence, he preferred the present Writ Petition. The learned counsel appearing for the petitioner submits that the property in question is not a mortgaged property and therefore, the Bank ought not to have invoked the proceedings of the SRFAESI Act. He also submits that the original documents and link documents are with him and without those documents the bank cannot give physical possession of the property. On the other hand the first respondent-Bank filed a counter affidavit stating that the property was already sold away by the Bank in a Public Auction on 18.11.2009 and physical possession of the property was also delivered to the purchaser and the structures existing on the said property were also demolished for making fresh constructions on the property by the purchaser. As such nothing survives in the proceedings and the petitioner is not entitled to the relief as sought. Heard the learned counsel appearing for both sides and also perused the entire material made available on record. It is evident from the facts of the case that the petitioner is having original title deeds and link documents with him and on the other hand the Bank filed its counter stating that the property was already sold away by the Bank in a public auction on 18.11.2009 and the purchaser has already paid the entire sale consideration and that the sale was confirmed in his favour on 30.12.2009 and a sale certificate also issued in his favour. Be that as it may, the truth or otherwise of the allegations cannot be gone into by this Court under article 226 of the Constitution of India. The scheme of the SRFAESI Act is very clear and categorical. As the petitioner herein purchased the property from the guarantor and he got an alternative and effective remedy under Section 17 of the SRFAESI Act to approach Debts Recovery Tribunal. The Supreme Court also in SLP (C ) 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 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 the circumstances and also in view of the observations made by the Supreme Court in SLP(C ) No. 10145 of 2010 dated 26t h July 2010, the Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed and the petitioner is at liberty to approach the DRT under Section 17 of the SRFAESI Act. There shall be no order as to costs. _______________________ GHULAM MOHAMMED, J _____________________ G. CHANDRAIAH , J DATE: 25.08.2010 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies.