Dismissed

Smt.K.Girija v. The Chief Manager and Authorised Officer

Telangana HC15 Apr 2009WP/23852/2007

Case brief

AI extract

What is this about?

The High Court declined to express an opinion on service of notice under Section 13 of the SARFAESI Act. It directed petitioners to approach the Debt Recovery Tribunal under Section 17 and disposed of the writ petition to avoid conflict with the statutory appellate mechanism.

What did the court decide?

Petitioners directed to approach Debt Recovery Tribunal under Section 17; Writ Petition disposed; No costs.

Smt.K.Girija Vs The Chief Manager and Authorised… — Banking and Recovery | Telangana HC (2009)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction)

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WEDNESDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND NINE

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PRESENT

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THE HON'BLE MR JUSTICE V.ESWARAIAH &

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THE HON'BLE MR JUSTICE SANJAY KUMAR

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WRIT PETITION No.23852 of 2007

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Between:

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1 Smt.K.Girija W/o.T.K.Karthavarayan

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R/o.H.No.8-59, Ranganayaki Street, Chittoor, Chittoor District.

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2 T.K.Karthavarayan S/o.T.Kandaswamy Naicker

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R/o.H.No.8-59, Ranganayaki Street, Chittoor, Chittoor District. ..... PETITIONERS

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AND

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1 The Chief Manager & Authorised Officer, Indian Bank, Circle Office,

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Chittoor Town, Chittoor, A.P.

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2 The Branch Manager, Indian Bank, Konga Reddypalli Branch, Chittoor Town, Chittoor, A.P.

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.....RESPONDENTS

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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 to issue a writ of Mandamus or any other appropriate writ, or direction declaring notice issued U/s. 13 (2) of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 published in the Hindu daily news paper dated 09.03.2006 and the consequential possession notice dated 19.2.2007 published in the Hindu dated 22.2.2007 and the auction notice dated 11.10.2007 published in Hindu dated 14.10.2007 as illegal, contrary to law and violative Article 300-A of the Constitution of India and consequently set aside the same and grant such other relief or reliefs.

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Counsel for the Petitioner: MR.NOUSHAD ALI

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Counsel for the Respondent No.: MR.P.SHIV KUMAR

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The Court made the following:

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Form-NIC-OGS/WP{KURR}

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THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE SANJAY KUMAR

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WRIT PETITION No.23852 of 2007

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ORDER: (per Hon’ble Sri Justice V.Eswaraiah)

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The petitioners question the action of the respondents with regard to the measures taken by them under Sec.13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”).

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It is stated that the notice under Sec.13(2) of the SARFAESI Act has not been served properly on the petitioners and the respondents have taken different stands with regard to the manner of service of notice. In one version it is stated that the notice sent by the respondents under Sec.13 (2) of the SARFAESI Act could not be served because the petitioners were continuously absent and in another version it is stated that the petitioners have not claimed, and also in other version it is stated that the notice sent under Sec.13(2) of the SARFAESI Act was refused, returned to sender, addressee not known. It is not known which version is the correct version.

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The learned counsel for the petitioners submits that notice was not properly served under Rule 3(1) of the Security Interest (Enforcement) Rules, 2002.

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We are not inclined to express any opinion with regard to the measures taken by the respondents with regard to service of notice.

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This Court, while admitting the writ petition, granted interim stay of all further proceedings subject to the condition of the petitioners depositing an amount of Rs.1,00,000/- by order dated 13.11.2007, and by order dated 31.10.2008 the respondent bank was directed to furnish the statement of account. It is stated that the statement of account was furnished and as per the account, the amounts due as on date was Rs.2,98,000/-, but whereas according to the petitioners the amount payable was about only Rs.70,000/-.

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The recovery of the said disputed amount depends upon the correctness of the measures taken by the respondent bank under Sec.13 of the SARFAESI Act. As the petitioner has got an effective remedy of appeal under Sec.17 of the SARFAESI Act before the Debt Recovery Tribunal questioning the legality and validity of the measures taken under Sec.13 of the SARFAESI Act, we direct the petitioners to approach the Debt Recovery Tribunal, Hyderabad under Sec.17 of the SARFAESI Act within a period of two weeks from today. On filing such appeal before the Debt Recovery Tribunal, Hyderabad, the same shall be entertained and disposed of, as expeditiously as possible, and there shall be stay of further proceedings of recovery pending disposal of such appeal subject to condition of the petitioners depositing Rs.70,000/- within two weeks from the date of filing of the appeal before the 2^nd respondent.

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The Writ Petition is accordingly disposed of. No order as to

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costs.

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V.ESWARAIAH,J

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____________________________ SANJAY KUMAR,J

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Dated: 15.04.2009 Dsr

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Note: Issue copy in two days B/o Dsr