SMT. R.VIMALA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The writ petitioner is seeking a Writ of Mandamus to declare the impugned E -auction sale dated 14.03.2016, covered by E -auction sale notice dated 10.02.2016, that was published in Eenadu Telugu Daily News Paper dated 13.02.2016, claiming the same even in pursuance of unserved demand and possession notices respectively dated 20.05.2015 and 05.10.2015 as null and vold; on the grounds that the said E -auction sale was held contrary to the mandate of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act). The writ petition is maintained against the State Bank of India, the secured creditor of Kurnool Branch, represented by its Authorized Officer as sole respondent originally and later as per orders in W.P.M.P.No.15879 of 2016 dated 20.04.2016, the auction purchaser is impleaded as 2nd respondent.

(2.) It is the factual matrix in nutshell that, the writ petitioner having availed house loan of Rs.16,88,000/ - on 01.10.2008, for purchase of built up area of 1250 Sq.ft., with common area along with undivisible 1/15th share equal to 26 Sq.yards out of 390 Sq.yards site all consisting of Flat No.401, IV Floor, V.C.Homes, Survey No.151/A situated in Sankhal Bagh, N.R.Peta, Kurnool; paid installments regularly upto the year, 2011 and later committed default. For the defaults committed, it is her version that her husband left his job and was doing business all and sundry and wherein he incurred debts and he left the city without disclosing whereabouts and some of the creditor Banks also filed criminal cases against them and after he was traced in the year, 2014 arrested in a criminal case of 2011 and later was released on bail. According to her, taking advantage of the things, the so called auction petitioner (2nd respondent), Smt.V.Prameela Reddy and one V.S.Reddy having an eye over her property supra colluded with the Bank and filed a suit with false claim for specific performance in O.S.No.79 of 2011, on the file of Principal District Judge, Kurnool. Her further version is that without any service of alleged demand notice dated 30.01.2011 under Section 13(2) and of possession notice dated 05.01.2012 under Section 13(4) of the SARFAESI Act, to proceed further including to take possession and without following the due procedure laid down under the Act; and even without service of alleged another demand notice dated 20.05.2015, issued the purported notice dated 05.01.2015.

(3.) The counter -affidavit filed by the 1st respondent -Bank through its Chief Manager is with the contentions that from availability of statutory remedies under SARFAESI Act, 2002 to approach the Debt Recovery Tribunal under Section 17 of the Act, to impugn the auction sale, the writ petition is not maintainable to prevent the Bank from recovering the dues and thereby the writ petition is liable to be dismissed, vide, Union Bank of India v. Satyawati Tondon , Kanaiyalal Lalchand Sachdev v. State of Maharashtra , K.Balakrishna v. Debt Recovery Tribunal, Hyderabad and V.K.Shekhar v. Indian Bank and submitted from the expression in Director of Settlements, A.P. and others vs. M.R.Appa Rao that law laid down by the Apex Court is binding on the High Court under Article 141 of the Constitution of India. In fact, the law is well settled in holding that a judgment even of the Supreme Court should not be read as a statute in understanding the binding nature on subsequent decision making process vide Union of India Vs. Major Bajhadur Singh .