GHULAM MOHAMMED, J. - (1.) THIS writ petition is filed seeking a Mandamus declaring the possession notice, dated 30-12-2010 issued by the first respondent to handover the petitioner's property bearing Flat No.403, Swati Towers, Plot No.HIG-616, 617 and 618, Phase VI, KPHB Colony, Kukatpally, Hyderabad, as illegal and arbitrary and consequently, to direct the first respondent not to take the possession of the petitioner's property till the disposal of the suit in O.S.No.26 of 2009 on the file of the Family Court, Ranga Reddy District at L.B. Nagar.
(2.) THE petitioner is said to be the wife of the third respondent herein. It is the case of the petitioner that she obtained loan from the bank and constructed the scheduled house. THEreafter, there were some disputes between herself and the third respondent, due to which the third respondent fraudulently sold the house to the second respondent. After knowing the same, the petitioner filed O.S.No.26 of 2009 before the Family Court, Ranga Reddy District at L.B. Nagar, for cancellation of the sale deed, dated 22-09-2009 executed by the third respondent in favour of the second respondent, and it is pending. In the meanwhile, the second respondent obtained loan from the first respondent-LIC Housing Finance Limited by mortgaging the said house, and when he committed default in repayment of the loan amount, the first respondent issued the impugned possession notice, dated 30-12-2010 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(for short `SARFAESI Act'). Hence, the writ petition. The learned counsel for the petitioner contends that the petitioner is the owner and she is in possession of the house, but the third respondent, due to some family disputes with the petitioner, fraudulently sold the house to the second respondent and executed the sale deed and the first respondent, without verifying the ownership and possession, granted loan to the second respondent. He further submitted that though the petitioner and her children have filed the suit for cancellation of the sale deed and the same is pending, the first respondent is trying to take possession of the house by evicting the petitioner and her children. However, there is an alternative remedy available to the petitioner as provided under Section 17 of the SARFAESI Act. The Supreme Court also held in its recent judgments that the power of jurisdiction under Article 226 of the Constitution of India shall not be exercised when there is alternative remedy available under Section 17 of the SARFAESI Act.
(3.) THEREFORE, we permit the petitioner to avail the alternative remedy by approaching the Debt Recovery Tribunal under Section 17 of the SARFAESI Act, since she is in possession of the schedule property, within a period of three weeks from today. In the meanwhile, the first respondent-LIC Housing Finance Limited shall not take any coercive steps for dispossessing the petitioner from the scheduled house.;