HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.19762 of 2009 DATED: 23-12-2009 BETWEEN: K.Kesava Reddy …Petitioner AND Indian Bank, rep. by its Authorized Officer-cum-Chief Manager, Circle Office, 1st floor, Seshapeeran Street, Chittoor & Another. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE NOUSHAD ALI WRIT PETITION No.19762 of 2009 ORDER: By means of filing this writ petition under Article 226 of Constitution of India, petitioner seeks issuance of a writ of mandamus declaring the action of the respondent-Bank in not returning the title deeds in respect of the properties mortgaged by the petitioner and other guarantors and in not refunding the excess amount recovered from the petitioner as arbitrary and illegal and consequently to direct the respondent-Bank to refund an amount of Rs.3,27,242/- with interest thereon and return the title deeds relating to the properties mortgaged to the respondent-Bank by the petitioner and other guarantors and also for damages of Rs.5.00 lakhs. At the outset, it is to be noted that the relief as claimed by the petitioner can only be granted by a civil Court in a suit for redemption of mortgage and for rendition of accounts, if any. Coming to the facts of the case, the petitioner who availed the term loan to an tune of Rs.7,91,000/- and cash credit facility of Rs.1.00 lakh from the respondent-Bank by executing necessary documents and mortgaging the properties, committed default in repayment of the loan amount, and that the account was declared as non-performing asset on 31.3.2004 followed by issuance of notice under Section 13(2) o f t h e Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘Act’) demanding for payment of an amount of Rs.9,80,052/- due as on 30.6.2005. According to the petitioner, on receipt of notice under Section 13(2) of the Act, he approached the Bank officials and started paying the amounts slowly and with an intention to close the account requested the Bank officials not to adopt coercive methods and during the year 2006-07 as he paid considerable amount, the account has to be re- classified as a performing asset, but still the respondent-Bank continued it as a non-performing asset and started threatening the petitioner. As requested by the petitioner, the respondent-Bank furnished a statement of account on 30.9.2009 stating that still an amount of Rs.1,27,839/- is due in the term loan account and Rs.39,063/- is due in the cash credit account. But, as per the calculation of the petitioner, he had paid Rs.3,17,897/- in excess in the term loan account as on 27.4.2009 and Rs.9,345/- in the cash credit account as on 31.3.2009 and therefore, the respondent-Bank is liable to refund an amount of Rs.3,27,242/- apart from returning the title deeds of the mortgaged properties deposited with the Bank. The respondent-Bank filed a counter affidavit opposing the claim of the petitioner. It is stated that after the interest is added to the account which was not debited to the account, the liability under the loan to be paid by the petitioner is Rs.6,15,365.86 ps. under term loan and Rs.40,430.14 ps. under the cash credit account, totaling to Rs.6,55,796/- as on 8.8.2009 and the said fact has already been clarified to the petitioner. Petitioner having received the statement of account with up to date interest, falsely contending that he paid the excess amount. After issuing the demand notice on 27.9.2005, the respondent-Bank approached the District Collector on 31.1.2006 to take necessary steps for taking possession of the property as the Bank has anticipated some resistance and non-cooperation from the petitioner for taking possession of the secured property. The District Collector, Chittoor has deputed the Mandal Revenue Officer, Valmikipuram to take possession of the property and to handover the same to the Bank. When the officials of the Bank visited the premises along with the Mandal Revenue Officer to take possession, the petitioner requested the officials of the Bank to grant one month time to clear the dues with a promise that in the event of his failure to clear the amounts, he would be obliged for taking possession of the property. Thereafter, the petitioner made some payments till April, 2009 and thus, after adjusting the amounts paid by the petitioner, the amount as furnished in the statement of account is still due. In view of the averments made in the counter affidavit, the respondent-Bank is directed to comply with the mandatory provision by issuing the possession notice as contemplated under Section 13(4) of the Act , if it wants to take possession of the secured property and can also take possession as contemplated under the Act for due recovery of the amounts due from the petitioner. On issuing such notice, it is always open for the petitioner to file an appeal under Section 17 of the Act, if he is aggrieved. Even otherwise, if the petitioner had paid any excess amount to the respondent-Bank as alleged, he can always file a suit for rendition of accounts and also for redemption of the mortgaged properties. In view of the effective alternative remedy available to the petitioner, the claim of the petitioner cannot be enquired in a summary manner by this Court sitting under Article 226 of Constitution of India. The writ petition is accordingly dismissed. No order as to costs. _________________ (A. GOPAL REDDY, J.) _________________ (NOUSHAD ALI, J.) DECEMBER 23, 2009 Tsr.