WP/16249/2009 of Korukonda Vinemayee Vs The REcovery Officer, Debts REcovery Tribunal on 31 December 2009

THE HON'BLE SRI JUSTICE A.GOPAL REDDYand THE HON'BLE SRI JUSTICE NOUSHAD ALI

DATED: 31-12-2009

WRIT PETITION No. 16249 OF 2009

Between:Korukonda Vinemayee and another

AND

.....

PETITIONERS

The Recovery Officer, Debts Recovery Tribunal, Isnar KhazanaTowers, 3[rd] Floor, 2[nd] Land, Dwaraka Nagar, Visakhapatnam – 530 06and three others

.....RESPONDENTS

THE HON'BLE SRI JUSTICE A.GOPAL REDDYandTHE HON'BLE SRI JUSTICE NOUSHAD ALI

WRIT PETITION No. 16249 OF 2009

ORDER:(per Sri A. Gopal Reddy, J)

The petitioners who are claiming to have a share in the propertymortgaged by respondent Nos.3 and 4 for availing the loan, filed thiswrit petition contending that they filed O.S No. 284 of 2008 on the fileof the learned Principal Subordinate Judge, Eluru for partition of thejoint family house into three equal shares and allotment of one suchshare to each of them and that even when the said suit is pending, theproperty cannot be put to auction for due recovery of the secured debt.

This Court in ICICI Bank, Bangalore v. V.T. Prakash[[1]]heldthat the third parties who claim rights over the property, which wasattached for due recovery of debt by a financial institution, where theRecovery Officer issued sale proclamation, can file their objections tothe attachment for sale of any property in execution of the certificate. On rejection of the claim petition by the Recovery Officer, they mayprefer an appeal as provided under Section 30 of the Recovery ofDebts Due to Banks and Financial Institutions Act, 1993 notwithstanding the provisions of Section 29. If the third parties areaggrieved by the rejection of the claim, they may also institute a suit asper sub-rule (6) of Rule 11 of Second Schedule to the Income Tax Act, 1961 and can establish their rights on the property which is in dispute. Any order passed by the Recovery Officer rejecting the claim will besubject to the result of the said suit, if any and his order will beconclusive only as per the judgment and decree passed by the civilCourt, but not otherwise.

In view of efficacious alternative remedy available to thepetitioners, the present writ petition cannot be entertained. The writpetition is accordingly dismissed granting liberty to the petitioners tolodge their claim before the Recovery Officer and they can avail theremedies available to them in law.

A. GOPAL REDDY, J

31-12-2009ks

NOUSHAD ALI, J

[1]2003 (3) ALD 369