(Per Ghulam Mohammed, J.)

The Question that arises for determination in this writ petition relates to action of the respondent-bank in initiating proceeding under the provision of the securitisation and Reconstruction of financial assets and enforcement of security interest act, 2002

(54 of 2002) (for short “the SARFAESI act”) in respect of a loan availed by the father of the petitioner.

2. The facts stated are that the father of the petitioner has stat1ed the business under of without considering the representation of the name and style of M/s. Snnivasa Borewells as a Proprietor and secured loan of Rs.2,16,000/- by mortgage of the property from the respondent-Bank on 13-6-1981 and purchased a Bore-Well Rig. When he committed default In payment of installments, the respondent bank filed a.S.No.5 of 1992 before the court of the Subordinate Judge, Puttur for recovery of an amount of RS.7,75,326/- by sale of mortgaged property. In the said suit father and mother of the petitioner were made as defendants 2 and.

3. The said Suit was decreed by the trial Court by its Judgment and decree dated 2-5-1999 directing the defendants i.e. mother and father of the pe1ltioner herein to pay an amount of Rs. ~ 0,52,723.75 ps. and interest @ Rs.3,35,000/- from the date of redemption till the date of realization and in default of the payment the respondent-bank can apply to the court for a final decree for the sale of the mortgaged property for realization of the due amount. The respondent-Bank filed E.P.No.1 of 2003 and the same was dismissed. Again another E.P.No.8 of 2004 was filed and it also came to be dismissed. Thereafter E.P.No.37 of 2008 was filed and the same is pending.

3. As the matter stood thus, the respondent-Bank has issued a notice dated 29-11-2008 under Section 13(2) of the SARFAESI Act calling upon the petitioner and other legal heirs to pay the due 2mount. In the said notice it is mentioned that the petitioner has been shown as the legal heir of the principal borrower and his mother was shown as the guarantor, and that petitioner's sisters have been also shown as legal heirs of late G. Ramakrishnam Naidu. Immediately after receipt of the said notice, the petitioner made representation dated 5-12-2008 to the respondent-bank stating that the respondent- bank has agreed for one time settlement for Rs. 7, 75,326/- and that with a great difficulty he had paid Rs.70,000/-. It is the grievance the petitioner that the respondent-Bank, without considering the representation of the petitioner, has issued possession notice under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 (for short "the Rules"). Challenging the said action of the respondent-bank in initiating proceedings under section 13(2) of the SARFAESI Act dt. 29-11-2008 and possession notice dated 6-2-2009 issued under Rule 8(1) of the Rules, the present writ petition has been filed.

4. Sri C. Raghu, learned counsel for the petitioner contends that proceedings under SARFAESI Act cannot be invoked against the legal heirs of the borrower as the definition of the "borrower" contained in Section 2(f) of the SARFAESI Act does not include a legal heir of the borrower and therefore once the Principal Borrower dies the respondent-Bank cannot invoke the provisions of the SARFAESI Act. In support of his contention, learned counsel relied an the decisions reported in Institute 01 Chartered Accountants of India v. Mis. Price Waterhouse AIR 1998 SC 74. Transcore v. U.O.I 2006 (2) SCALE 585. It is further contended by the learned counsel for the petitioner that by the time SARFAESI Act came into force with effect from 21-8-2002, already a decree was passed by the civil Court and since the rights under a security agreement available to the respondent-bank have been crystallized in the form of decretal rights provisions of Section 13 of the SARFAESI Act are not applicable.

5. On the other hand, Sri Ambadipudi Satya narayana, learned Standing Counsel for the respondent-bank woul