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2009 DIGILAW 806 (AP)

K. S. Fayaz v. State Bank of India

2009-11-11

A.GOPAL REDDY, SAMUDRALA GOVINDARAJULU

body2009
JUDGMENT : A. GOPAL REDDY, J. 1. Petitioners, who are third parties to the recovery proceedings and who filed OS No. 30 of 2008 for cancellation of the void sale deed executed in favour of the 2nd Respondent, filed the present writ petition contending that the 1st Respondent who issued possession notice u/s 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (for short "the Act") to the 2nd Respondent proposing to conduct auction and threatening to dispossess the Petitioners from the premises without serving any notice on them. 2. It is stated that the father of Petitioners-K.S. Ali Murtuza purchased the premises bearing Door No. 19437-A22 (present D. No. 19-1-402) situated at Vinayak Nagar, Anantapur apart from other properties. He died on 18.7.1991 leaving behind the Petitioners, their mother and two sisters as legal heirs. Respondent No. 2, who is no other than the husband of the Petitioners' sister, fraudulently purchased the above said property and got the sale deed in his favour. While so, the 2nd Respondent availed the loan from 1st Respondent-Bank by mortgaging the above property. On coming to know of the same the Petitioners filed OS No. 30 of 2008 on the file of the Senior Civil Judge, Anantapur for cancellation of the sale deed executed in favour of the 2nd Respondent to the extent of their share. While so, the 1st Respondent-Bank issued notice u/s 13(2) of the Act without furnishing the details of the loan. On coming to know of the same, the Petitioners got issued reply notice on 19.5.2008 requesting the 1st Respondent-Bank to furnish the details and bringing to its notice about the fraudulent sale in favour of the 2nd Respondent and mortgaging the property in question with the 1st Respondent-Bank. Since the 1st Respondent-Bank has not furnished any information and likely to lake possession behind their back they approached this Court by filing the present writ petition. 3. The counter filed by the 1st Respondent-Bank shows that the 2nd Respondent, who is the owner of the land, mortgaged the property for the loan availed by him and committed default in repayment of the same, and admitted about filing of civil suit-OS No. 30 of 2008 by the Petitioners before the Senior Civil Judge, Ananthapur, which is now transferred to Additional Senior Civil Judge, Ananthapur and renumbered as O.S. No. 124 of 2008. The 1st Respondent-Bank is contesting the said suit. The Petitioners, not being the borrowers or guarantors, are not entitled to any notice and before taking action necessary procedure contemplated under Rule 8 of the Security Interest (Enforcement) Rules, 2002 (for short "the Rules"), namely, possession notice will be published in the leading newspapers and affixing the said notice on the outer door or at such conspicuous place of the property, which is sought to be taken possession, will be followed, and only after following the necessary procedure contemplated under Rules 8 and 9 of the Rules, the property will be sold in auction. 4. Admittedly, the Petitioners are not borrowers or guarantors for the secured loan availed by the 2nd Respondent. As and when such notice is affixed on the premises or published in the newspapers as contemplated under the Rules, they can always lay their claim before the Recovery Officer appointed for the said purpose and on rejecting the claim petition, they can file an appeal before the Debts Recovery Tribunal or move the Civil Court for the appropriate relief. 5. Since the civil suit is already pending and in view of the alternative remedy of appeal is available to the Petitioners, the present writ petition filed by them apprehending that the 1st Respondent-Bank will not follow the procedure cannot be entertained and it is accordingly dismissed. No costs.