THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.21326 of 2007 DATE: FEBRUARY 01, 2008 Between:- Putcha Venkata Krishna Murthy. … Petitioner And The Authorised Officer, State Bank of India, Machavaram Branch, Vijayawada … Respondent THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.21326 of 2007 ORDER:- Heard Sri S.V.R.Subrahmanyam, the learned Counsel representing the Writ Petitioner and Sri Narender Reddy, the learned Counsel representing the respondent. 2. This Court ordered notice before admission and granted interim stay for a limited period which is being extended from time to time. 3. Counter affidavit is filed on behalf of the respondent. 4. Sri S.V.R.Subrahmany, the learned Counsel representing the Writ Petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also had pointed out the relevant material papers. 5. Sri Narender Reddy, the learned Counsel representing the respondent had taken this Court through para 6 of the counter affidavit and would maintain that in the light of the stand taken by the respondent, no further orders need be passed in the present Writ Petition. 6. The Writ Petition is filed for a Writ of Mandamus declaring the action of the respondent in selling property of the petitioner namely residential house site admeasuring 358 sq.yds., bearing Plot No.15 in R.S.No.215/3 situated at Sivaji Road, Ayyappa Nagar, Patamata Vijayawada, Krishna District, bounded by East: Road 33 feet width (46-6”), south: Plot No.14 (72-6”), North: plot No.16 (70-0), West: Plot No.67 (46-0”) in connection with loan to one Karusula Srinivasulu, S/o.Venkateshwarlu, M/s.Jyothisri Medical Agencies, Vijayawada, as illegal, arbitrary, ultravirous and violative of Article 14 and 300-A of the Constitution of India and direct the respondent not to interfere in any manner with the petitioner’s possession and enjoyment in respect of the said property and pass such other suitable orders. 7. It is stated in the affidavit filed in support of the Writ Petition that the petitioner is the owner of the residential house sites admeasuring 358 Sq.Yds. bearing plot No.15 in R.S.No.215/3 situated at Sivaji Road, Ayyappa Nagar, Patamata Vijayawada, Krishna District, bounded by East: Road 33 feet width (46-6”), south: Plot No.14 (72-6”), North: plot No.16 (70-0), West: Plot No.67 (46-0”) and that he purchased the said property on 5-3-1984 from Srirama Cooperative Building Society Ltd., No.H-634, Vijayawada, represented by its President – Sri Kotturi Srirfam Murthy, S/o.Seetharamaiah, vide registered document No.1343 of 1984 of Sub-Registrar Office, Patamata. It is also stated by the petitioner that there is a civil dispute relating to declaration of title and possession with his wife’s brother V.Vidhyadhara Sharma in O.S.No.40 of 2003 on the file of V-Additional District Court (FTC), Rajahmundry, wherein the original of document No.1343 of 1984 is filed and that the said case is pending. While the matters stood thus, the petitioner learnt that a document was brought into existence by impersonation as if one Utikuri Radhika, W/o.Satyanarayana of Vijayawada purchased the above described property under a registered sale deed No.2630 dated 22-7-2004 of Patamata Sub-Registry purported to have been executed by him. The photograph that was affixed to the sale deed No.2630 of 2004, signatures and thumb impression in the said sale deed which were purported to be that of the petitioner, they do not actually belong to the writ petitioner. The petitioner had not sold his property to the said Radhika or to any one. It is stated that the alleged sale deed No.2630 dt.22-7-2004 was fraudulently and collusively brought into existence by impersonation and forgery and that the petitioner gave a report to the Patamata Police Station on 6-12-2004, which was registered as FIR No.535 and took up the investigation and that after investigation, the police filed C.C.No.1030 of 2006 before the I-Additional Chief Metropolitan Magistrate at Vijayawada and the same is also pending. Further it is stated that the petitioner is in actual possession and enjoyment of the property in question. Though a sale deed was brought into existence, the petitioner’s possession and enjoyment was not disturbed. As the sale deed No.2630 of 2004 was brought into existence by impersonation and forgery with an intention to cause wrongful loss to the petitioner, he filed a suit in O.S.No.126 of 2007 on the file of VII- Additional District Judge (FTC), Vijayawada, for the relief to set aside the sale deed No.2630 of 2004 of Sub- Registrar Office, Patamata, by directing the Sub-Registrar to cancel the sale deed No.2630 of 2004 and that the said suit is also pending. Further it is stated that the petitioner is a permanent resident of Rajahmundry, East Godavari District, and had permanent abode there and also stated that he never resided in Vijayawada at any point of time. It is stated that since the petitioner is a resident of Rajahmundry, he gave licence in 2005 to one Alla Ramana Reddy, S/o.Venga Redy, R/o.Nethaji Road, Ayyappa Nagar, Patamata, Vijayawada, to use the land by tie cattle and to place cattle feed therein and that ever since, he is guarding his land, not permitting any one into the said land. While so, the petitioner learnt that the State Bank of India, Madhavaram, Vijayawada filed a case in O.A.No.27 of 2007 before the Debts Recovery Tribunal, Visakhapatnam, wherein his name was shown as 2nd defendant. It is also averred that on petitioner’s enquiry, it is revealed that one Karusala Srinivasulu, S/o.Venkateswarlu, the sole proprietor of M/s.Jyothisri Medical Agencies, Vijayawada, obtained the loan from State Bank of India, Madhavaram Branch, for which the above described property was mortgage deed by impersonation. Further it is learnt that the petitioner was set ex parte in O.A.No.27 of 2007 on 13-8-2007 and posted the case to 11-9-2007 for evidence of the applicant therein. Whereas, the petitioner filed a petition under Section 22(G) of the Debts Recovery Act, for setting aside the ex parte order dated 13-8-2007 and the same is pending, stands posted to 15-10-2007 and no Award is passed so far. Further it is stated that the petitioner is under the impression that as no Award is passed, there will not be any danger to his property and the Bank people will not proceed against his property. While the matter stood thus, in September, 2007 some persons styling themselves as officials of the State Bank of India visited petitioner’s house site and informed his licencee Alla Ramana Reddy that the said house site was given as Security to a loan and as the loan amount was not discharge, they are going to sell this property and in turn, his licencee told the same to him and that he made enquiries. The petitioner further averred that his enquiries revealed that the respondent was authorised to recover the loan amount and in exercising the powers conferred under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the respondent taking steps to sell the property without noticing that the original owner is not stood as guarantor. It is also stated that the petitioner never executed any document in favour of State Bank of India, Machavaram, and never deposited his titl4e deed in Doc.No.1343/1984 of Sub-Registrar Office, Patamata and the said document is in V-Additional District Court, Rajahmundry. There is no documents containing petitioner’s signatures with State Bank of India, Machavaram and so the State Bank of India, Machavaram cannot proceed against him and also stated that the photograph with the State Bank of India, Machavaram Branch as guarantor is not belong to him. Then, the petitioner requested the respondent not to proceed against his property as he did not mortgage it and he is no way concerned with the loan and he also informed to the respondent that the property is still in his possession and enjoyment and he brought to the notice of the respondent as well as the Manager of the State Bank of India, Machavaram Branch, Vijayawada, about the pendency of the litigation in respect of the property before several Courts and he also brought to the notice that if the proposal of the respondent is fulfilled in selling the property, the purchaser would not get any title, moreover he will be placed to face legal battle and it will lead to multiplicity of proceedings. Inspite of it, the petitioner told that unless there is stay from the Court of law, they have no power to stop the sale and that the petitioner believed that the Bank had colluded with the principal debtor namely Karusala Srinivasulu, S/o.Venkateswarlu of Vijayawada, in mortgaging his property by impersonation. It is also stated by the petitioner that his Counsel at Vijayawada gets a copy of tender form from the respondent on 5-10-2007 and the information rendered in the Annexure to the tender form is not at all true and correct. No notice of any kind was given to the petitioner. Even according to the respondent public notice was published in The Hindu and Eenadu, Vijayawada City Edition on 10-9-2007. Further it is stated by the petitioner that he reiterates that he is a resident of Rajahmundry and there is no possibility to see or notice the said publication. It is also stated that it is false to aver that the respondent had taken possession of the secured asset on 16-6-2007 belonging to the guarantor Mr.Putcha Venkata Krishna Murthy. 8. In the counter affidavit filed by the respondent sworn to by the Branch Manager of the respondent Bank, it is averred that the State Bank of India, Machavaram branch sanctioned cash credit limit of Rs.10 lakhs on 6-3-2004 to M/s.Jyothisri Medicals represented by its Proprietor Sri Karusala Srinivasulu. The said loan facility was collaterally secured by Sri P.Venkata Krishna Murthy by creating equitable mortgage by deposit of the title deeds over his plot admeasuring 358 Sq.Yds. of vacant site in R.S.No.215/3, Shivajinagar, Patamata, Vijayawada. The said loan was also personally guaranteed by Sri P.Venkata Krishna Murthy and Smt.K.Radhika, W/o.Sri K.Srinivasulu (borrower) and Sri K.Hari Babu, the better of Sri k.Srinivasulu (borrower). It is also stated that as the borrower and guarantors committed default in repaying the loan amount, the respondent Bank filed suit O.A.No.27/2007 before the Debts Recovery Tribunal, Visakhapatnam on 2-3-2007 and the said case is pending disposal. The respondent Bank also initiated proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 through the Authorised Officer i.e., Chief Manager (CSC), Region-3, State Bank of India, Zonal Office, Vijayawada and the notice dated 10-9-2007 was issued and published inviting tenders for sale of the said plot No.15 admeasuring 358 Sq.Yds. for realization of the debt. Further it is stated that after publication of the said notice dated 10-9-2007 inviting tenders, the petitioner herein got issued a notice through his Advocate stating that he never mortgaged his property to any Bank for credit facilities and he also filed the present Writ Petition before this Court and obtained stay of further proceedings on 8-10-2007 in W.P.M.P.No.27667/2007 in W.P.No.21326/2007. however, it is stated that on receiving the complaint from the petitioner, he had made oral enquiries with the Sub-Registrar, Gandhinagar, Vijayawada and noticed that the title deed deposited with the respondent-Bank are not genuine and the matter requires further enquiry as the records of the period were burnt in riots that occurred in December, 1999 at Vijayawada. The name of the guarantor Sri P.Venkata Krishna Murthy shown in the Bank record is not that of the petitioner and the photo affixed on the loan application is different with the proof of identity submitted to the Bank. Further it is stated that the petitioner had already filed an application before the Debts Recovery Tribunal at Visakhapatnam seeking to set aside the ex parte order passed dated 13-8-2007 in O.A.No.27/2007. The petitioner also filed another suit O.S.No.126/2007 on the file of VII-Additional District Judge, Vijayawada praying for the relief to set aside the sale deed document No.2630/2004. In the light of the said disputed facts, the respondent-Bank is not proceeding further for sale of the asset for the present pending disposal of the O.A.No.27/2007 filed before the Debts Recovery Tribunal at Visakhapatnam. 9. In the light of the specific stand taken in the counter affidavit, it is needless to say that the respondent cannot take further steps at this stage. It may be that this direction would be subject to the result of the other proceedings pending and in the event of the further enquiry to be conducted and the further decision to be taken in this regard, liberty is given to the petitioner to question the same at the appropriate stage. 10. Accordingly, the Writ Petition is allowed to the extent indicated above. No order as to costs. _________________ Justice P.S.Narayana 1st February, 2008 smr