WP/34499/2011 of Surampudi Surya Prakash Rao Vs The Chief Manager, on 29 December 2011

HON'BLE SRI JUSTICE GHULAM MOHAMMEDAND HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO

WRIT PETITIONNO. 34499 OF 2011

Between:

Surampudi Surya Prakash Rao and one another

………….Petitioners

AND

The Chief Manager and one another

………….Respondents

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

This Writ Petition has been filed seeking toissue an order particularly one in the nature of Writof Mandamus declaring the action of the firstrespondent-Bank in issuing notice dated28.11.2011 to the petitioner under Section 13(2) ofthe Securitisation and Reconstruction of FinancialAssets and Enforcement of Security Interest Act,2002 asking the petitioner to repay the outstandingloan amount as illegal and arbitrary.

Petitioners herein approached the firstrespondent-Bank for securing housing loan for anamount of Rs. 18,00,000/-. The main grievance ofthe petitioners is that the second respondentgranted only Rs. 10,20,000/- out of 18,00,00/- andremaining amount of Rs,. 7,80,000/- was not sanctioned even till today but issued possession Notice (symbolic) dated 28.11.2011, passed by thesecond respondent under Section 13(2) of theSecuritization and Reconstruction of FinancialAssets and Enforcement of Security Interest Act,2002 read with Rule 8(1) & (2) of Security InterestRules 2002, asking the petitioners to pay Rs.11,18,027/- and interest thereon with effect from13.9.2011, within sixty days. Aggrieved by thesame, the preset Writ Petition is filed.

Heard the learned counsel appearing for petitioners and also perused the material madeavailable on record.

Under Section 17 of the SRFAESI Act, anyaggrieved 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 this Chapter, 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 accordancewith 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 the case and also in view of the above observation of the Supreme 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: 29.12.2011

KA

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