ORDER :

(C. Praveen Kumar, J.)

1.) These two Writ Petitions are filed by the Guarantor, as such they are disposed of by this Common order:-

2.) The facts, in issue, are as under:

(i). The Second Respondent/borrower obtained loan from the First Respondent to an extent of Rs.95,00,000/- on cash credit facility. The Petitioner is said to have deposited original title deed with the Bank and also executed and registered a Memorandum of Deposit of Title Deeds vide Document No. 5890 of 2015 at the Office of Sub-Registrar, Guntur.

(ii). As the borrower failed to pay the amount despite repeated demands, the loan account of the borrower was declared as N.P.A Thereafter a notice under Section 13(2) is said to have been issued on 31.03.2021 to the borrower and guarantors incorporating the list of mortgaged properties and demanding the outstanding due amount of Rs.1,05,83,668.31 ps. As no representation was received to the notices issued, possession notice under Rule 8(1) was issued, intimating taking possession of the properties belonging to borrower and guarantors. This possession notice issued under Section 13(4) of SARFAESI Act, is under challenge now.

3.) Sri. D. Krishna Murthy, the learned Counsel for the Petitioners mainly submits that the Petitioners cannot be called as guarantors as they are not aware about their property being mortgaged to the Bank. According to him, the borrower committed theft of these documents and obtained loan by forging their signatures and mortgaging the title documents. He further submits that even assuming that they are guarantors, no notice under Section 13(2) was served on them and the said notice is not in terms of Rules 3 and 4 of the Security Interest (Enforcement) Rules, 2002. He relies upon a judgment of the Patna High Court in Syndicate Bank V. Rajesh Kumar and Ors, AIR 2017 Patna 126, to contend that notices should be issued separately to the borrower and guarantor.

4.) On the other hand, Ms. V. Dyumani, learned Counsel appearing for Respondent Bank, opposed the same contending that the notices issued separately under Section 13(2) of the Act, were served on the Writ Petitioners and borrower and in the absence of any representation, the Bank proceeded further, after declaring the account as N.P.A. She further submits that proof of service of notices issued under Section 13(2) are also filed along with the counter. According to her, the Petitioners are set-up by the borrower, who never choose to come before this Court and explain his stand.

5.) The points that arises for consideration in these two Writ Petitions are as under:

(i) Whether the notices issued under Section 13(2) of the SARFAESI Act are served on the Petitioners.

(ii) Whether the Petitioners are aware about the issuance of possession notice under Section 13(4).

(iii) Whether there was non-compliance of Rule 3 of the Security Interest (Enforcement) Rules, 2002, as no separate notice was issued to the Petitioners- Guarantors.

(iv) Whether the borrower played fraud by committing theft of the documents relating to subject property and then obtained loan by mortgaging the same, without the knowledge of the Petitioners.

6.) In order to appreciate the rival contentions, it would be appropriate to refer to Sections 13(2), 13(4) of SARFAESI Act, 2002, and Rule 3 of the Security Interest (Enforcement) Rules, 2002, which are as under:-

Sections 13(2) and 13(4) of SARFAESI Act, 2002. ?13. Enforcement Of Security Interest.

(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any installment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the dat