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Judgment
B.S. Patil
In these writ petitions, petitioners are challenging the action initiated by the respondent-Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security (Merest Act. 2002 (for short the Act'') including the sale notice dated 29.10.2011 issued vide Annexure-G fixing the date of sale of the properly in question by way of public auction on 05.12.2011.
The main contention urged by the petitioners is that though there was a partition on 04.0.5.2000 whereunder the property in question was got divided amongst the petitioners. 5th respondent and other co-sharers, suppressing the same, the 5th respondent has stood as a guarantor for advancing the loan in favour of the 4th respondent by the Allahabad Bank. The 5th respondent has executed a mortgage deed in his capacity as a guarantor for the said loan advanced in favour of the 4th respondent.
It is the further case of the petitioners that based on the partition effect in the year 2000, the names of the respective sharers have been entered in the records and the respondent-Bank could not have acted based on the mortgage executed by the 5th respondent in respect of the entire building. Petitioners are relying on several documents in support of their assertions.
It is contended by the learned Senior counsel appearing for the petitioners that without even notifying the petitioners coercive action has been initiated by the respondent-Bank and the property of the petitioners is brought for sale.
The respondent-Bank has entered appearance and filed objections. It has denied the assertions made by the petitioners and has contended that the mortgage was duly executed by the 5th respondent as a power of attorney holder of the other co-sharers.
Having heard the learned counsel for the parties and on perusal of the pleadings and the materials on records, I find that the disputed question with regard to the right, title and interest of the petitioners in the property in question which according to the petitioners is illegally offered as security by the 5th respondent without any authority is a matter that requires to be considered by recording evidence and by examining the documents. The petitioners have an alternative efficacious remedy of challenging the measures initiated by the Bank under the provisions of the Act by filing an appeal tinder section 17 of Act before the Debts Recovery Tribunal.
At this stage, it is contended by the learned Senior counsel appearing for the petitioners that as the property is brought for sale and the sale is fixed today (05.12.2011) and as the Tribunal at Bangalore is not sitting regularly, the interest of the petitioners may be protected even if this Court declines to interfere on the ground of alternative remedy. This submission is just and fair.
If the sale is permitted to be conducted, the right of the petitioners will be affected. Hence, in my considered view, interim order for a period of four weeks staying the impugned sale notice deserves to be granted in the ends of justice, keeping in mind the fact that the Tribunal sits only for three days in a week and the petitioners have to file an appeal and move the Tribunal for necessary orders.
Petitioners are granted three weeks time to file the appeal. Interim order is granted for a period of four weeks staying the sale notice. It is made clear that the Tribunal will examine the matter uninfluenced by the interim order passed by this Court and taking note of the materials on record in accordance with law. Writ Petitions are accordingly dispose of.
In the light of the nature of the order passed, it is unnecessary to notify the other respondents.