*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 6110 of 2007 % 15.09.2008 Between: # Ch.Sudhakar Raju …Petitioner And $ Tirumala Coop.Urban Bank ltd., rep.by Branch Manager Abids,Hyderabad and others. …Respondents ! COUNSEL FOR PETITIONER: Sri S.V.Bhatt ^ COUNSEL FOR RESPONDENTS: G.P. for Cooperation < Gist: > Head Note: ? CITATIONS: 1. (2007) 6 SUPREME COURT CASES 236 2. AIR 2008 KERALA 137 (DB) 3. AIR 2009 MADHYA PRADESH 193 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 6110 of 2007 Between: Ch.Sudhakar Raju S/o.Sri Purnachandr aRaju R/o.Flat No.303, Sundar Sai Plaza, Anandnagar Khairatabad, Hyderabad ..... PETITIONER AND 1 Tirumala Coop.Urban Bank ltd., rep.by Branch Manager Abids,Hyderabad 2 The Authorized officer, Tirumala Coop.Urban Bank Ltd., rep.by Branch Manager, Abids,Hyderabad 3 The AP Coop.Tribunal, Hyderabad .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ order or direction more particularly one in thenature of writ of mandamus declaring the action of the 2nd respondent in issuing notice dated 24.3.2007 seeking delivery of physical possession of the Flat No.303, Sundar sai plaza, Anandnagar, Khairatabad, Hyderabad as illegal, unconstitutional and contrary to the order passed in WP.No.19672 of 2003 dated 23.10.2003 and WP.No.1229 of 2006 dated 7.6.2006 and consequently restrain the respondents herein from interfering with petitioner possession of the said property during the pendency of CTA.No.238 of 2003 on the ﬁle of 3rd respondent herein and pleased to pass Counsel for the Petitioner:MR.S.V.BHATT Counsel for the Respondent No.: GP FOR COOPERATION The Court made the following : THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 6110 of 2007 ORDER: The petitioner obtained a loan from the 1st respondent-Cooperative Urban Bank. Alleging that the petitioner committed default in payment of the instalments, the 1st respondent approached the Arbitrator, under Section 61 of the A.P. Co-operative Societies Act (for short ‘the Act’). An award was passed on 21.04.2003, for a sum of Rs.7,38,079/-. Thereupon, the petitioner ﬁled C.T.A.No.238 of 2003 before the A.P. Co-operative Tribunal at Hyderabad. It also ﬁled I.A.No.802 of 2003 for stay; and an unconditional stay was granted. Aggrieved thereby, the 1st respondent ﬁled W.P.No.19672 of 2003. It was disposed of by this Court on 23.10.2003, directing that the stay in favour of the petitioner, shall be subject to the deposit of a sum of Rs.1,00,000/-. Ultimately, the C.T.A. was allowed on 12.06.2006. The 1st respondent ﬁled W.P.No.14428 of 2006, against the same. The writ petition was allowed on 08.12.2006 and the matter was remanded to the Tribunal, for fresh consideration and disposal. Even while the proceedings are pending before the Tribunal, on remand, the 1st respondent invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the 2002 Act’) and the 2nd respondent issued notice, dated 24.03.2007. The same is challenged in this writ petition. Heard the learned counsel for the petitioner and the learned counsel for the respondents. A short question, that arises for consideration, in this writ petition, is as to whether it is competent for the 1st respondent to invoke the provisions of the 2002 Act, even while the proceedings under the Act are pending before the Tribunal, may be, after remand. There was some doubt as to whether a Banking Company constituted under the Act can invoke the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short ‘the 1993 Act’). Through its Judgment in Greater Bombay Coop. Bank Ltd., vs. United Yarn Tex (P) Ltd. [1], the Supreme Court held that the provisions of the 1993 Act do not apply to the banking companies constituted under the Act. A subsidiary question had arisen before diﬀerent High Courts, as to the applicability of the provisions of the 2002 Act, to such companies. The plea of the aggrieved parties was that in Greater Bombay Coop. Bank Ltd.’s case (1 supra), the Supreme Court held that even where the provisions of the 2002 Act are invoked, the aggrieved parties have to avail the remedies provided for under the 1993 Act and on account of this analogy, the 2002 Act does not apply to the baking companies constituted under the Act, once the provisions of the 1993 Act were held not applicable to them. This argument was turned down by the Kerala High Court in its Judgment in George Kutty Abraham vs. Secretary, K.D. Co-op. Bank Ltd. [2] and the Madhya Pradesh High Court in H.Z.Hussain vs. Akola Janta Commercial Co-op. Bank Ltd[3]. In the context of the present case, let it be assumed that the provisions of the 2002 Act apply to the 1st respondent- bank also. Still, it needs to be examined as to whether the 1st respondent can invoke the provisions of that Act, even while the award, that was passed under Section 61 of the Act, is pending adjudication before the Tribunal. In certain cases, it may be competent for a ﬁnancial institution to invoke the procedure under the Act, or the 2002 Act. However, once it has chosen to invoke the provision of one enactment, it cannot have recourse to other. At the instance of the 1st respondent, an award was passed under Section 61 of the Act. The petitioner had successfully challenged the same before the Tribunal. It was on a challenge made by the 1st respondent, that the judgment of the Tribunal was set aside and the matter was remanded to the Tribunal for fresh consideration and disposal. Empowering or enabling the 1st respondent to invoke the provisions of the 2002 Act, in the given circumstances, would, in a way, amount to clothing it with the power of setting aside the judgment of this Court or for that matter, that of the Tribunal. Such a contention can never be accepted and the Parliament can never be said to have intended that the provisions of the 2002 Act can be so invoked, as to annul the judgments or orders, for existence of which, the party, that intends to invoke the said provisions, is instrumental. Viewed from any angle, the impugned notice cannot be sustained in law. The writ petition is, accordingly, allowed and the impugned notice, dated 24.03.2007, is set aside. The Tribunal, before which C.T.A.No.238 of 2003 is pending, shall endeavour to dispose of the same, within a period of six (6) weeks from today. There shall be no order as to costs. _________ 15.09.2008 Note: L.R.Copy to be marked. (B/o) JSU ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRK} THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 6110 of 2007 Date: 15.09.2008 JSU [1] (2007) 6 SUPREME COURT CASES 236 [2] AIR 2008 KERALA 137 (DB) [3] AIR 2009 MADHYA PRADESH 193