THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH Writ Petition No.21027 OF 2010 24-08-2010 Between: G.Srinivas Reddy ……….Petitioner And M/s. Indiabulls Housing Finance Ltd., Hydeabad. ………Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH Writ Petition No.21027 OF 2010 ORDER : (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is misconceived inasmuch as there is no privity of contract between one Mogulla Raj Karan, who is the GPA of the petitioner, and the respondent-Indiabulls Housing Finance Limited, Hyderabad. Raj Karan is alleged to be a purchaser from the petitioner-the original borrower, by virtue of an agreement of sale-cum-GPA, dated 27-09-2006, and hence, there is no privity of contract between Raj Karan and the bank. The privity of contract exists between the respondent-bank and G.Srinivas Reddy, the petitioner herein and one G.Padma, who is the daughter of the petitioner. The property was mortgaged to the bank on 20-09-2006 and also the respondent-bank has issued Section 13 (2) Notice to the borrowers viz., G.Srinivas Reddy, the petitioner herein and G.Padma under the provisions of Securitization and Reconstruction of Finance Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and notice was served ultimately by publishing in three newspapers and when the petitioner filed to pay the mortgaged amount, the respondent-bank again got issued a possession notice under Section 13 (4) of the Act calling upon the petitioner to hand over the possession of the properties. But, as the petitioner did not cooperate for handing over the secured asset to the respondent-bank for the purpose of selling the same under the provisions of the Act, the respondent- bank has filed Crl.M.P.No.1830 of 2010 on the file of the Chief Metropolitan Magistrate, Hyderabad. The learned Magistrate, by his order dated 15-07- 2010, after considering the entire material available on record, has recorded a specific finding that the documents filed by the respondent-bank show prima facie case to issue a warrant under Section 14 of the SARFAESI Act and accordingly allowed the petition appointing an advocate-commissioner to take physical possession of the properties and handover the same to the complainant-bank for further proceedings. Aggrieved by the same, the petitioner has filed this writ petition through his GPA questioning the order of the learned Magistrate. 2. The learned counsel for the petitioner contends that the petitioner, original borrower, executed agreement of sale-cum-GPA in favour of Raj Karan, and by virtue of it, Raj Karan gets right and title over the property in dispute. He further submits that the petitioner handed over the link documents to Raj Karan. 3. The learned counsel for the respondent-bank contended that Raj Karan is not at all concerned with this transaction and there is no privity of contract between him and the bank and if he has any grievance, he cannot proceed against the respondent-bank by invoking the jurisdiction under Article 226 of the Constitution of India and he has to work out his remedies in the Debt Recovery Tribunal only. 4. In the facts and circumstances of the case, we are of the view that as the petitioner has not come to the Court with clean hands, this Court cannot exercise equity jurisdiction under Article 226 of the Constitution of India. 5. In the result, the writ petition is dismissed. It is left open to the petitioner to take recourse to any other procedure which is permissible under law. No costs. _____________________________ JUSTICE GHULAM MOHAMMED Dated:24-08-2010 ________________________ JUSTICE G.CHANDRAIAH KVR