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N. Ramesh Kumar and Another vs Punjab and Sind Bank and Another

Andhra Pradesh High Court · Decided on 15 September 2008 · Citation: (2009) 4 ALD 16 : (2009) 1 ALT 40

HON’BLE JUDGES
V.V.S. Rao, J
ACTS & SECTIONS REFERRED
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) — Section 13(2), 13(4), 14, 17 · Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Rules, 2004 — Rule 8, 8(1)
RESULT
Dismissed
CASE NUMBER
Writ Petition No. 27141 of 2005
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Judgment

6 paragraphs · 361 words

V.V.S. Rao, J.—Petitioners filed writ petition seeking a writ of Mandamus declaring action of first respondent Bank in trying to evict petitioners from Flat No. 102, M.N.R. Apartments, H. No. 12-11-171/1/10, Uppar Basthi, Namala Gundu, Secunderabad, as illegal and arbitrary.

Though interlocutory matter, W.P.M.P. No. 34861 of 2005 for an order of injunction against first respondent, is coming before this Court, the matter is involved a short question, heard finally and is being disposed of by this order.

2.

First respondent Bank initiated action u/s 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, for short). Second respondent who is borrower, did not comply with the procedure u/s 13(2), leading to action/notice u/s 13(4) of SARFAESI Act read with Rule 8(1) of Security Interest (Enforcement) Rules 2002 (Security Rules, for short). Petitioners are tenants of two flats belonging to second respondent. They allege that without there being due compliance with requirement of Section 14 of SARFAESI Act and Rule 8 of Security Rules, first respondent Bank took symbolic possession and is trying to sell away property. Petitioners have filed suits being O.S. No. 980 of 2005 and obtained ad interim injunction orders. In spite of the same, as there is eminent danger of being evicted, they filed present writ petition.

3.

First respondent has filed counter affidavit, inter alia, stating that as second respondent failed to pay the amount, action was initiated under SARFAESI Act, that pursuant to action u/s 13(4) of the Act, Executive Magistrate took possession.

4.

The matter is heard today. Learned Standing Counsel for first respondent Bank has placed before this Court a communication dated 12-9-2008 stating that possession of property is still with Bank since 22-3-2007 and the said property has not been sold so far. There is alternate remedy for petitioners u/s 17 of SARFAESI Act before jurisdictional Debts Recovery Tribunal. In view of the fact that possession is already taken and petitioners as tenants have right to appeal, this Court is not inclined to interfere in the matter.

5.

Giving liberty to petitioners to prefer Appeal within two weeks from today, the writ petition is dismissed.