S. Chandrashekhar, J. - (1.) CHALLENGING the notice dated 10.08.2013, the petitioners have approached this Court by filing the present writ petition.
(2.) THE learned counsel appearing for the petitioners has submitted that the petitioners purchased flats from one Smt. Sampat Devi and Mrs. Saraswati Devi -respondent No. 8, A loan was taken from the respondent -United Bank of India by the said Smt. Sampat Devi and Anil Tiwari -respondent No. 7 on 13.04.2007. Sale deeds in favour of the petitioners were executed, on 05.05.2010 for the petitioner No. 1 and on 07.01.2009 for the petitioner Nos. 2 and 3 by the respondent No. 8 and the said Smt. Sampat Devi. A copy of sale deed produced by the respondent -United Bank of India would disclose that when the property was purchased by the respondent No. 8 and one Sampat Devi, it was vacant piece of land on which only an old construction was standing. Subsequently, that property alone has been mortgaged by depositing Original Title Deed with the respondent -United Bank of India and therefore, the construction made by the builder cannot be attached or sold in auction by the respondent -Bank. The petitioners are purchasers of the flats which were not mortgaged at any point of time with the respondent -United Bank of India and therefore, the notice dated 10.08.2013 is without jurisdiction. It is submitted that notice dated 10.08.2013 has been issued without issuing a notice under Section 13(2) of the SARFAESI Act, 2002. Moreover, no opportunity of hearing was granted to the petitioners and only for loan amount of Rs. 24,90,000/ -, the entire building is sought to be put on auction, which cannot be permitted in law. The learned counsel appearing for the respondent -Bank has raised a preliminary objection to the maintainability of the writ petition and submitted that after 13(4) notice is issued, the borrower or any other person can approach the Debts Recovery Tribunal under Section 17 by filing SARFAESI Appeal. The questions raised by the petitioners are disputed questions of fact which cannot be adjudicated by the Writ Court. It is stated that the respondent No. 7 and Smt. Sampat Devi alias Smt. Sampat Tiwari applied for housing loan to the tune of Rs. 25 lacs which was sanctioned on 13.04.2007 and the agreement was entered into between the parties on 19.04.2007. The respondent No. 8 and the said Smt. Sampat Devi created equitable mortgage of their land and building by depositing Title Deed Nos. 633 & 634 situated at Mauza No. 51, Khata No. 51, Plot No. 273 admeasuring 2 kathas of land. Notices under Section 13(2) as well as under Section 13(4) of the SARFAESI Act, 2002 were issued to the borrower and consequently a notice has been issued to the petitioners for vacating the premises. It is further stated that loan was sanctioned as housing loan whereas, the borrower has utilized the money for constructing flat which were sold to the petitioners.
(3.) I have carefully considered the submission of the learned counsel for the parties and perused the documents on record.;