9911796707
TMI Blog2004 (8) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... 009. The proprietor created an equitable mortgage in respect of building bearing No. 27-43-8 along with land admeasuring 499.87 square yards at Governorpet, Vijayawada. Petitioner Nos. 2 to 5 herein also mortgaged their property as guarantors. It is the case of the first petitioner that the instalments were paid up to December 2003, but in May 2004, the second respondent-Bank filed an application being O.A. No. 98 of 2004 before the Debts Recovery Tribunal, Visakhapatnam (DRT) for recovery of the amount by sale of the properties mortgaged to the Bank. It appears, the Bank filed two Interlocutory Applications being I.A. Nos. 229 and 233 of 2004 and obtained order of attachment of movable as well as immovable properties. The said O.A. it stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal for the second respondent-Bank to invoke the provisions of the SARFAESI Act having invoked the remedy before the DRT. No other submission is raised in challenge to the impugned orders. 4. After due consideration of the submissions made before the Court, I am not able to accept the submission of the learned Counsel for the petitioners. The SARFAESI Act was enacted with a view to enforce security interest of the lending banks. The vires of certain provisions of the SARFAESI Act were challenged before the Supreme Court on the ground that the provisions vesting the financial institutions to recover the loan amounts by bringing the mortgage properties to sale as vesting arbitrary powers without any guidance for their exercise. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was already operating in the field, namely, the Recovery of Debts due to Banks and Financial Institutions Act." (p. 338) Yet again, it was observed as under : "77. It is also true that till the stage of making of the demand and notice under section 13(2) of the Act, no hearing can be claimed for by the borrower. But looking to the stringent nature of measures to be taken without intervention of Court with a bar to approach the Court or any other forum at that stage, it becomes only reasonable that the secured creditor must bear in mind the say of the borrower before such a process of recovery is initiated so as to demonstrate that the reply of the borrower to the notice under section 13(2) of the Act has been considered applying m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debts Recovery Tribunal under section 17 of the Act, at that stage. 2.As already discussed earlier, on measures having been taken under sub-section (4) of section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under section 17 of the Act before the Debts Recovery Tribunal. 3.That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition as it may deem fit and proper to impose. 4.In view of the discussion already held in this behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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