IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.1787 of 2008 Between: 1 M.Pandu S/o.Sri M.Madan, R/o.Plot No.308-B,Srinilaya Township Badangpet,Saroornagar R.R Dist 2 Smt.A.Sugunamma W/o.Sri Gabriel, R/o.Plot No.224/A,Srinilaya Township Badangpet,Saroornagar R.R Dist 3 Sivagulab Singh, S/o.Sivagulab Singh, R/o.Plot No.326/B,Srinilaya Township Badangpet,Saroornagar R.R Dist ..... PETITIONERS AND 1 State Bank Of India, Shamsherguj Branch,Hyd Rep.by its Authorised Officer 2 M/s.Srinilaya Constructions Beside Indo American Shcool, Vaishali Nagar, Champapet Sagar Road Hyd .....RESPONDENTS 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 issue a writ of Mandamus or any other appropriate writ, order or direction declaring the action of the respondent Bank in issuing sec.13(2) Notice by publishing in the Andhra Jyothi Newspapers without serving the same as per Rule 3 of the secretary interest (Enforcement) Rules 2002 and the consequential possession Notice Dt.29-1-2008 issued by the respondent Bank Published in Andhra Jyothi Newspapers dt.30-1-2008 under Rule 8(1)&(2) of properties as illegal arbitary ,mala fide and contrary to the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act 2002 and the Enforcement Rules 2002 and without jurisdiction and set aside the same and pass Counsel for the Petitioner: MR.C.RAGHU Counsel for the Respondent No.: MR.DEEPAK BHATTACHARJEE The Court made the following: Form-NIC-OGS/WP{BMR} THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT PETITION No.1787 of 2008 ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) In this writ petition, the petitioners question the publication of the impugned notice issued by the respondent bank under Sec.13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”), dated 30.01.2008. The main contention of the learned counsel for the petitioners is that notice as required under Sec.13(2) of SARFAESI Act read with Rule-3 of the Security Interest (Enforcement) Rules, 2002 has not been issued to the petitioners under registered post with acknowledgment due, and therefore, service of notice by affixture on the respective addresses of the petitioners is not justified, and further, publication of notice as impugned in this writ petition is also not justified. The respondent bank has filed an additional counter affidavit, specifically mentioning that they had issued a notice under Sec.13(2) of the SARFAESI Act to the petitioners on 17.11.2007, but the said notice was returned unserved, and in view of that, notice was served by affixture at the respective addresses of the petitioners, and thereafter only, notice was published in newspaper on 28.11.2007. The respondent bank, however, is unable to produce the returned covers through which the notice is said to have been sent to the petitioners. This Court while ordering notice before admission on 04.02.2008, granted interim stay on condition of deposit of Rs.50,000/- within a period of four weeks. The said order does not per se direct that each of the petitioner should deposit the said amount. Since the account of each petitioner is separate the direction has to be understood as with respect to each petitioner. In fact, the petitioners have also understood the same in the same manner and the 3rd petitioner has paid the entire amount as outstanding and liquidated his liability. This writ petition, so far as the 3rd petitioner is concerned, therefore, does not survive, in view of his liability having been liquidated. So far as the petitioners 1 and 2 are concerned, the counter affidavit of the respondent bank states that the 1st petitioner has paid a total amount of Rs.29,550/- and the 2nd petitioner has paid a sum of Rs.13,000/-. The said direction of Rs.50,000/-, therefore, though not complied with by each of the petitioners 1 and 2, keeping in view of the ambiguity in the direction, we have heard both the counsel appearing for the petitioners as well as the respondents and dispose of the writ petition on merits. Though the contention of the learned counsel for the petitioners is only based upon non-compliance of Rule-3 as mentioned above, in view of the fact that the petitioners are now aware of the notice of the respondent bank issued under Sec.13(2) of the SARFAESI Act which is also published and impugned herein, we are of the opinion that no prejudice will be caused to the petitioners and at the best, they could have asked for opportunity to file objections to the said notice. We, therefore, deem it appropriate to dispose of this writ petition with the following directions: The impugned publication of the notice issued by the respondent bank under Sec.13(2) of the SARFAESI Act shall be treated as a notice personally served on the petitioners, as required under Rule-3 of the Rules as mentioned above, and the petitioners shall be entitled to file objections, if any, to the said notice, within a period of two weeks from today. On such objections being filed, the respondent-bank shall be at liberty to pass appropriate orders under Sec.13 (3)(a) of the SARFAESI Act, and if no objections are filed, the bank shall be free to take recourse under Sec.13(4) of the SARFAESI Act. It is needless to mention that if any such objections are filed by the petitioners 1 and 2, the same shall be considered and the respondent bank shall pass appropriate orders, in accordance with law, and shall take further proceedings, as is permissible under SARFAESI Act. Subject to the above, the writ petition is disposed of. ___________________ V.ESWARAIAH,J ___________________________ VILAS V.AFZULPURKAR,J Dated:16.03.2009 Dsr ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 State Bank Of India, Shamsherguj Branch,Hyd Rep.by its Authorised Officer 2 2 CD copies