THE HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.20758 of 2007 Dated: .02.2008 Between Eppanapally Ravi …Petitioner And Canara Bank, Rajendranagar Branch, N.P.A.Post, Shivrampally, Hyderabad, rep. by its Branch Manager …Respondent THE HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.20758 of 2007 ORDER: Heard Sri T.Venkat Reddy, learned counsel representing the writ petitioner and Sri Deepak Battacharjee, learned Standing Counsel representing the respondent. The writ petition is filed for issuance of writ of mandamus declaring the action of the respondent in getting issued the notice dated 22.09.2007 by the Advocate Commissioner to take the vacant physical possession of the Flat bearing No.102 on First Floor of Padmalaya Residency admeasuring 870 sq. fts. in premises bearing Municipal No.7-1-309/A/33 situated at B.K.Guda, S.R.Nagar, Hyderabad, as illegal, improper, unconstitutional and opposed to principles of natural justice, and consequently to direct the respondent to follow the procedure as contemplated under Section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for the purpose of convenience) and to pass such other suitable orders. This Court ordered notice before admission on 04.10.2007 and granted an order of status quo for a limited period, which is being extended from time to time. Counter-affidavit is filed by the respondent. The learned counsel appearing for the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and would maintain that the conduct of the writ petitioner would show the bona fides and hence if the Advocate Commissioner is allowed to take possession of the flat in question the petitioner will be put to serious loss. On the contrary, Sri Deepak Battacharjee, learned Standing Counsel representing the respondent had taken this Court through the contents of the counter-affidavit and would maintain that procedure had been followed and that in view of the facts and circumstances of the case, inasmuch as the writ petitioner is having an effective alternative remedy, the writ petition itself is not maintainable. Heard the learned counsel on record and perused the entire material available on record. It is stated that the petitioner purchased a flat bearing No.102 on first floor of Padmalaya Residency admeasuring 870 sq.ft. in premises bearing Municipal No.7-1-309/A/33 situated at B.K.Guda, S.R.Nagar, Hyderabad and availed a home loan from the respondent bank to a tune of Rs.5,00,000/- payable in monthly instalments over a period of 15 years commencing from May, 2003 by mortgaging the said flat as security. Initially, he lived in the said flat and subsequently, the same has been let-out to one N.Venkat Ratnam Reddy, who is now residing in the said flat. It is also stated that due to financial constraints, he could not make instalments regularly. However, he paid huge amounts in one lumpsum instead of monthly instalments to the respondent bank. He paid an amount of Rs.2,23,000/- in his Home Loan Account No.1336 on various dates and he has to clear the loan amount by the end of May, 2018 and that he has no intention whatsoever to evade the payment due to the respondent bank. It is also averred that while the things stood thus, one Sri K.Chaitanya Kumar, Advocate, who said to have been appointed as Advocate Commissioner by the learned Chief Metropolitan Magistrate, Hyderabad, had served the impugned notice, dated 22.09.2007, which is addressed to the petitioner, on his tenant asking him to deliver the physical vacant possession of the above said flat on or before 26.09.2007. Immediately, his tenant informed the same to him and handed over the impugned notice to him on 22.09.2007. He was surprised to see the impugned notice since the respondent had not issued any notice under Section 13(2) of the Act and straight away got the Advocate Commissioner appointed to take over possession, which is ex facie illegal, unconstitutional and violative of principles of natural justice. Immediately, the petitioner rushed to the respondent bank and enquired about the same, but the respondent had not given any response nor given particulars about his home loan account. As he is due to pay some amounts to the bank, he paid a sum of Rs.1,00,000/- on the same day i.e., on 24.09.2007 and the respondent bank received the same without any objection. On 26.09.2007, the Advocate Commissioner came to his flat to take possession of the flat, wherein the petitioner had shown the receipt to him to the effect that he paid an amount of Rs.1,00,000/- to the credit of his home loan account and therefore the same is not non-performing account. Thereupon, the Advocate Commissioner left the place by stating that he would again come on 02.10.2007 to take possession after verifying the payments made by him subsequent to his notice. It is further stated that the action of the respondent in getting appointed the Advocate Commissioner to take possession of the petitioner’s flat without compliance of mandatory provisions as contemplated under Section 13 of the Act is ex facie illegal and unconstitutional, as such, the proposed action of the respondent to take possession of his flat through Advocate Commissioner’s notice dated 22.09.2007 is liable to be set aside. As already submitted above, since the petitioner had no intention to evade the payment and to show his bona fides, he had paid an amount of Rs.1,00,000/- subsequent to the impugned notice dated 22.09.2007 and in total he paid an amount of Rs.2,23,000/- as on the date of filing of the writ petition. In such circumstances, if the Advocate Commissioner is allowed to take possession of his flat, he will be put to irreparable loss and severe hardship. In the counter-affidavit filed on behalf of the respondent, which was sworn to by the Senior Manager of the respondent bank several of the allegations had been denied and certain of the allegations had been admitted. It is stated that the petitioner had availed loan facility of Rs.5.00 lakhs on 26.04.2003 from the respondent bank and agreed to repay the loan with contractual rate of interest on quarterly rests. The loan facility was availed after execution of required loan documents. The housing loan of Rs.5.00 lakhs was repayable with interest @ 9% p.a. compounded monthly on the security of residential flat bearing Flat No.102 on first floor of Padmalaya Residency admeasuring 870 sq.ft. in the premises bearing Municipal Door No.7-1-308/A/33 with proportionate undivided share of land admeasuring 25 sq.yards situated at Bhalook Khan Guda, S.R.Nagar, Hyderabad and also the personal guarantee of Sri K.Ramachandraiah. The account was not maintained as per the loan agreement and in view of the above circumstances a notice was caused on 21.06.2007 calling upon the petitioner and his guarantor Sri K.Ramachandraiah to repay the outstanding liability of Rs.5,30,914/- as on 09.06.2007 which includes interest applied up to 31-05-2007. The petitioner was also directed to pay further interest @ 13.75% per annum with monthly rests being the applicable rate of interest on revision and inclusive of overdue interest from 01-02-2005 till the date of full and final payment. The respondent bank, thereafter, filed a suit bearing O.S.No.1888 of 2007 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad for recovery of a total sum of Rs.5,21,282/- which included interest applied till 12-08- 2007. Thereafter the respondent bank initiated proceedings under the Act. A notice under Section 13 (2) of the Act was published in newspapers viz., Andhra Jyothi and Indian Express issued on 06.06.2007 giving 60 days time to the petitioner to liquidate the liability. As the liability was not liquidated within 60 days period and as the physical possession could not be taken by the respondent bank, an application was filed under Section 14 of the Act before the Chief Metropolitan Magistrate, Hyderabad and the learned Metropolitan Magistrate appointed the Advocate Commissioner namely Sri K.Chaitanya Kumar to take physical possession of the flat from the petitioner and deliver the vacant possession of the same to the respondent bank. Accordingly, the impugned notice was issued by Sri K.Chaitanya Kumar on 22.09.2007 directing the petitioner to hand over possession of the said flat. In reply to para 4 of the affidavit filed in support of the writ petition, it is stated that the petitioner paid a sum of Rs.1.00 lakh on 26- 09-2007 and the same was credited to his account. Even after the sum of Rs.1.00 lakh was credited, the balance principal amount is Rs.3,93,374/- plus interest from 01-02-2005 till the date of full and final payment as per contractual rate which is @13.25% compounded monthly. It is therefore incorrect to state that the account is no more a non-performing asset. The account was classified as non-performing asset and hence the interest was not applied with effect from 01-02- 2005. However, the respondent bank is entitled to claim unapplied interest from 01-02-2005 till the date of full and final payment for liquidation of the liability. It is denied that the Advocate Commissioner left the premises after it was brought to his notice that the account has become performing asset. In reply to paras 5 and 6 of the affidavit, it is stated that all the payments made by the petitioner are given credit including the sum of Rs.1.00 lakh paid on 26-07-2007. In spite of payment, the outstanding liability to be liquidated will be Rs.5,21,282/- plus further interest on the aforesaid rate from 13-08-2007 till the date of full and final payment. It is stated that against the proceedings initiated under Section 13 (4) of the Act, the petitioner could have preferred an appeal under Section 17 of the Act before the Debt Recovery Tribunal, Hyderabad. The petitioner has no right to invoke the extraordinary jurisdiction of this Court without exhausting the available remedy under Section 17 of the Act. The Supreme Court i n Punjab National Bank v. O.C.Krishnan and others[1] held that the fast track provided under the Statute cannot be derailed by invoking the extraordinary jurisdiction of the High Court. This Court may therefore decline to exercise its jurisdiction on the aforesaid ground alone. These are the respective stands taken by the parties. In the light of the view expressed by the Supreme Court in Punjab National Bank’s case (supra) and also in the light of the specific stand taken by the respondent bank in the counter-affidavit, this Court is of the considered opinion that the petitioner be given liberty to make representation to the respondent bank praying for reasonable time to clear off the loan. Further, the petitioner is also at liberty to invoke such other alternative remedies available to him in law. Except making these observations, no positive relief, as such, can be granted in the present writ petition. With the above observations, the writ petition is hereby dismissed. There shall be no order as to costs. ________________ P.S.Narayana, J Date: .02.2008 va [1] (2001) 6 SCC 569