Disposed

K.Ganga Raju v. The STate Bank of India., Sarc Main Branch

Telangana HC26 Apr 2010WP/9487/2010

Case brief

AI extract

What is this about?

The single bench disposed of a writ challenge against an order directing the eviction of a borrower. The court declined to exercise writ jurisdiction, directing the petitioner to approach the Debts Recovery Tribunal under Section 17 of the SARFAESI Act for the meritorious issues.

What did the court decide?

The petitioner was granted liberty to file an application before the Debts Recovery Tribunal within ten days to challenge the order under Section 17 of the SARFAESI Act.

K.Ganga Raju Vs The STate Bank of India., Sarc Main… — Banking and Recovery | Telangana HC (2010)

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THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND

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THE HONOURABLE SRI JUSTICE NOUSHAD ALI

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Writ Petition No. 9487 of 2010

Dated: 26-4-2010

Between:

K.Ganga Raju

…Petitioner

and The State Bank of India, Kakinada Branch rep. by its Authorised Officer and Assistant General Manager and others.

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…Respondents.

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Order: (Per Hon’ble Sri Justice Goda Raghuram)

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Heard Sri Raghavender Reddy, learned counsel for the petitioner and Sri Deepak Bhattacharjee, learned counsel for the respondents.

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The order of the 2^nd respondent dated 24-2-2010 directing the 3^rd respondent to take possession of the specified property of one Smt Ankam Surya Kumari w/o Nageswara Rao, D.No. 86-8-8, Tilak Road, Rajahmundry and hand it over to the 1^st respondent-Bank-the secured creditor, in purported exercise of the power under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) is called in question in this writ petition.

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The 2^nd respondent passed the impugned order on a petition by the secured creditor. It was pleaded in the said application that the borrower Smt Surya Kumari had defaulted on a loan account and therefore, proceedings were initiated under the provisions of the Act. The order passed by the authority under Section 14 of the Act is an order in aid of the substantive right of the Bank to take possession of the secured assets under Section 13 (4) (a) of the Act. The secured creditor is at liberty under the provisions of Section 13 (4)(a) of the Act to take possession of the secured assets itself where the secured creditor considers it expedient to seek sovereign aid in the matter of taking possession by an appropriate application/a request in writing to the authorities enumerated in Section 14 of the Act. Any order passed under Section 14 of the Act is thus an order in aid of the substantive right of the secured creditor under Section 13 (4) of the Act. In respect of any proceedings under Section 13 (4) of the Act, any person aggrieved has an appellate remedy under Section 17 of the Act before the Debts Recovery Tribunal having jurisdiction in the matter.

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The petitioner, the father of the borrower Smt Ankam Surya Kumari pleads that he had gifted the schedule property to his daughter by way of a

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registered deed on 15-4-2004 but is continuing in the premises under a lease agreement dated 1-9-2004 entered into with his daughter; that the lease was renewed up to 30-8-2013; that his daughter died on 27-9-2006; and that he is willing to vacate the house property (the secured asset) as and when the sale of the secured asset is finalised and is willing to participate in the auction if and when conducted by the secured creditor. Each of the contentions of the petitioner is more appropriately addressed before the appellate authority.

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As the petitioner has available an effective, alternative and efficacious statutory remedy, this Court is not inclined to exercise jurisdiction under Article 226 of the Constitution. Since the order of the 2^nd respondent is not established to be patently without jurisdiction, we consider it appropriate to grant liberty to the petitioner to pursue the appropriate appellate remedy under Section 17 of the Act. If an application is filed before the appropriate Debts Recovery Tribunal, having jurisdiction over the matter and within ten days from today, the learned Tribunal shall entertain the said application and determine the same on merits, without rejecting the application as having been filed beyond time, under Section 17 (1) of the Act.

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The writ petition is disposed of as above. No order as to costs.

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______________________ GODA RAGHURAM, J

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_________________ NOUSHAD ALI, J

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26^th April, 2010. GRR

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THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE NOUSHAD ALI

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Writ Petition No. 9487 of 2010