WP/34546/2011 of T.Siva Rama Krishna Reddy, Vs The Branch Manager, on 29 December 2011

HON'BLE SRI JUSTICE GHULAM MOHAMMEDAND

HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITIONNO. 34546 OF 2011

Between:

T. Siva Rama Krishna Reddy

………….Petitioners

AND

The Branch Manger, Chaitanya Godavari GrameenaBank, Eluru Branch and five others.

………….Respondents

ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed)

This Writ Petition has been filed challengingthe action of the second respondent-Bank inissuing auction notice dated 19.12.2011.

Brief facts of the case are that the petitioner has got 1/4[th] undivided share in the joint ancestralproperty admeasuring 415 sq. yards and thebuilding therein bearing D.No. 7E-6-3, City or Townin S.No. 1541, Kathepu Road, Eluru City, whichwas mentioned in Item No. 1 in the impugnedauction notice issued by the second respondent. The first respondent issued possession Noticedated 16.3.2011 under Section 13(2) of theSecuritisation and Reconstruction of FinancialAssets and Enforcement of Security.

The main grievance of the petitioner is that hehas not made any application to the first respondent to grant loan and the first respondentby colluding with the respondents 4 to 6 playedfraud on the petitioner and crated a forgeddocument and granted loan to 4[th] respondentwithout his consent.

Heard the learned counsel appearing for the petitioner and also perused the material made availableon record.

Under Section 17 of the SRFAESI Act, any aggrieved person can file an appeal before the DebtsRecovery Tribunal.

Section 17 of the Act reads as under:

“Right to appeal: (1) Any person (including borrower), aggrieved byany of the measures referred to in sub-section (4) of Section 13taken by the secured creditor or his authorised officer under thisChapter, may prefer an appeal to the Debts Recovery Tribunalhaving jurisdiction in the matter within forty-five days from the dateon which such measures had been taken.

(2) Where an appeal is preferred by a borrower, such appeal shallnot be entertained by the Debts Recovery Tribunal unless theborrower has deposited with the Debts Recovery Tribunal seventyfive 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 berecorded in writing, waive or reduce the amount to be depositedunder this section.

(3) Save as otherwise provided in this Act, the Debts RecoveryTribunal shall, as far s may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks andFinancial Institutions Act, 1993 (51 of 1993) and rules madethereunder.”

The Supreme Court in SLP (c ) No. 10145 of2010 dated 26[th] July 2010 at paragraph 27 of thejudgment observed as under:

“27. It is a matter of serious concern that despiterepeated pronouncement of this Court, the High Courtscontinue to ignore the availability of statutory remediesunder the DRT Act and SRFAESI Act and exercisejurisdiction under Article 226 for passing orders whichhave serious adverse impact on the right of banks andother financial institutions to recover their dues. Wehope and trust that in future the High Courts willexercise their discretion in such matters with greatercaution, care and circumspection.”

In view of the facts and circumstances of thecase and also in view of the above observation of theSupreme Court in SLP (C ) No. 10145 of 2010, thisWrit Petition is liable to be dismissed.

Accordingly, the Writ Petition is dismissed. However, the petitioner is at liberty to approach theDebts Recovery Tribunal, Hyderabad. There shall beno order as to costs.

________________________

GHULAM MOHAMMED, J

_______________________________

NOOTY RAMAMOHANA RAO , J

DATE: 29.12.2011KA

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