THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION No. 3592 of 2011 ORDER: (Per Hon’ble Sri Justice N.V. Ramana) According to the petitioner, he has obtained loan of Rs.6,00,000/- from the respondent bank in the month of November 2004, by creating equitable mortgage of the property standing in the name of his wife, and repaid an amount of Rs.3,50,000/- in installments till 2010. Thereafter, he suffered ill health and also sustained loss in business and hence could not pay the balance amount. Consequently, the respondent bank has initiated proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’), and issued publication of possession notice dated 29.01.2011, stating that it has taken over the possession of the mortgaged property in exercise of powers conferred under Section 13(4) of the Act. The petitioner states that the respondent bank, except publishing the possession notice in newspaper, did not serve the notice on him as required under the Act. It is his grievance that the respondent bank, without following the due process of law and without considering his request for regularization and enhancement of loan account, is proceeding to auction the subject property, which is arbitrary and illegal. The respondent filed counter-affidavit, denying the allegations made by the petitioner and stating that a sum of Rs.6,32,605.94 ps. is due by the petitioner as on 13.09.2010 excluding the interest from 01.03.2010, and having failed in all respects to recover the due amount from the petitioner and his guarantor, the bank has initiated proceedings under the Act and issued notice under Section 13(2) of the Act on 13.09.2010 for recovery of the said amount. The petitioner has never approached the bank seeking time for regularization and enhancement of loan account as alleged in the affidavit and he has simply submitted an application on 02.01.2011 to waive off the interest and grant some more time to pay the due amount. So far as service of possession notice on the petitioner is concerned, it is stated that the officials of the respondent bank went to the petitioner’s house for serving the possession notice, but the petitioner refused to receive the same and when the officials tried to affix the notice on the door of his house, he threatened them. As such, the respondent bank has sent the notice by registered post, but the same was not claimed by the petitioner’s wife. Thereafter, the bank has issued paper publication for taking over the possession of the mortgaged property as per the procedure contemplated under the Act, on 30.01.2011. Therefore, the respondent bank has not violated any of the procedure contemplated under the Act and the petitioner has approached the Court by suppressing the real facts, even though he has a remedy of appeal under Section 17 of the Act. This Court, on 21.02.2011, while admitting the writ petition, passed interim orders in W.P.M.P. No. 4454 of 2011, directing the respondent not to take possession of the subject property and auction the same, pending disposal of the writ petition, on condition of the petitioner depositing Rs.2,00,000/- within a period of four weeks from that date. At the hearing, the counsel for the petitioner submitted that the petitioner has paid Rs.2,00,000/- in pursuance of the interim order passed by this Court, in addition to Rs.3,50,000/- paid by him before initiation of proceedings. He further submitted that the petitioner is willing to pay the balance amount due and he wants to make a representation to the bank for settlement/regularization of the loan account. In view of the above submissions, we deem it appropriate to dispose of the writ petition as under: The petitioner is directed to submit the representation to the bank, seeking settlement/regularization of the loan account, within a period of four weeks from today. On such representation being made, the bank shall consider the same and take appropriate decision in the matter, and till such time, it shall not take any coercive steps. The writ petition is accordingly disposed of. No order as to costs. _____________ N.V. RAMANA, J _________________ P. DURGA PRASAD, J 22nd September 2011 IBL