IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21/12/2017

C O R A M

THE HON'BLE MR.JUSTICE S.MANIKUMAR

AND

THE HON'BLE MR.JUSTICE R.SURESH KUMAR

W.P.No.33640 of 2017

1. Mr.V.S.Raghavan

2. Mrs.Indira Raghavan

...

Petitioners

Vs

HDFC Ltd

rep. By the Authorised Officer

2^nd Floor, ITC Center

760 Anna Salai

Chennai 600 002.

...

Respondent

Prayer: Petition filed under Article 226 of the Constitution of

India, praying for the issuance of a writ of Mandamus, to direct

the respondent to dispose of the petitioner's representation

dated 8/11/2017.

For petitioners

...

Mr.G.Poonkundran

O R D E R

(Order of the Court was made by S.MANIKUMAR, J)

Petitioners are not the borrowers, but parents of the

borrower, who had availed loan and mortgaged her property.

2. Material on record discloses that the petitioner's

daughter Harini, availed loan and mortgaged her flat, as

security asset. She died on 27/3/2016. HDFC Ltd., respondent

is stated to have sent a demand notice, dated 28/3/2017, to the

petitioners, intimating that their daughter Ms.Harini (since

deceased), during her life time, was granted a loan of

Rs.21,60,000/-, as per the terms and conditions contained in the

loan agreement. By observing that the petitioners have failed

and neglected to regularise the account, Bank in its letter,

dated 28/3/2017, stated that it has no option, but to call back

the entire loan, together with all its related outstanding dues.

In the said letter, Bank has also requested the petitioners, to

pay a sum of Rs.20,87,307/-, within seven days from the date of

https://hcservices.ecourts.gov.in/hcservices/

receipt of their demand notice, with further interest at the

rate of 18% p.a., as applicable till repayment is made, failing

which borrower has no option, except to initiate appropriate

legal action, including taking steps to sell the property,

mortgaged in favour of the Bank, for recovery of dues.

Subsequently, Bank has issued a possession notice, dated

12/10/2017, to the petitioners. Thereafter, Bank has issued a

letter, dated 23/10/2017, stating that actual possession of the

mortgaged property has been taken, on 12/10/2017. Thereafter,

Bank has issued a sale notice, dated 24/10/2017, bringing the

mortgaged property for auction, on 5/12/2017.

3. Contending inter alia that the petitioners have no

knowledge of the transaction of their daughter Harini, with

HDFC Bank and the demand notice, dated 28/3/2017, issued under

Section 13 (2) of the SARFAESI Act, 2002 has not been served on

the petitioners and therefore, the whole proceedings are in

violation of the provisions of the SARFAESI Act, 2002, writ

petitioners have sent a letter, dated 8/11/2017 to HDFC Ltd.,

Chennai. As the said petition is stated to be pending,

petitioners have sought for a writ of mandamus, directing HDFC

to pass orders on the said application.

4. Added further, Mr.G.Poonkundran, learned counsel for

the petitioners submitted that the petitioners are neither the

borrowers nor the guarantors. He also submitted that even

taking for granted that the petitioners have not been served

with a notice, under Section 13 (2) of the SARFAESI Act, 2002,

representation dated 8/11/2017, has to be construed as a reply

to Section 13 (2) notice and unless and until, there is reply

communicated in writing, Bank can proceed against the mortgaged

property.

5. Heard the learned counsel for the petitioners and

perused the materials available on record.

6. Admittedly, loan has been borrowed by Ms.Harini (since

deceased) and the flat owned by her has been mortgaged with

HDFC Bank. Material on record, housing loan approval, dated 23^rd

February 2012, enclosed in the typed set of papers shows that

the amount approved by HDFC Bank was Rs.21,60,000/-; rate of

interest was 10.50% p.a., on a variable rate basis; repayment

t