THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO. 25923 OF 2007 DATED: -01-2008 BETWEEN: M/s. Sri Rajmatha Projects, H.No.1-2-234/13/31, Aravind Nagar Colony, Domalaguda, Hyderabad, rep.by its Managing Partner R. Karthik …Petitioner and Andhra Bank, Masab Tank Branch, Hyderabad, rep.by its Chief Manager … Respondent THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.25923 OF 2007 ORDER: Heard Sri G. Mahender, learned counsel representing the writ petitioner and Smt. V.Dyumani, learned counsel representing the respondent. 2. This writ petition is filed seeking a writ of Mandamus to declare the action of the respondent in approaching the Chief Metropolitan Magistrate Court, Hyderabad when the S.A.No.42 of 2006 is pending before the Debt Recovery Tribunal as illegal and arbitrary. 3. The respective counsel had taken this court through their respective stands taken in the affidavit filed in support of the petition and counter affidavit and made certain submissions. 4. The Managing Partner of the petitioner had sworn to the affidavit filed in support of the writ petition and it is stated that the petitioner company with a view to expand its business had approached the respondent bank to grant the SOD facility to the tune of Rs.8,00,000/- and after completing the necessary formalities the respondent bank had sanctioned SOD facility on 06-05-2002 subject to certain terms and conditions of the respondent-bank. It is also stated that at the time of sanctioning the said facility the respondent bank demanded security of immovable property and accordingly the petitioner offered the property situated at H.No. 1-2-375/1/A admeasuring 94.71 sq. yards situated at Domalaguda, Gaganmahal, Hyderabad. Further it is stated that from the date of availing the said facility, the petitioner had paid an amount of Rs.2,11,773/- up to 2004 and later on account of various financial constraints, they could not pay the installments and as a result of that the respondent-bank issued a notice of demand on 03-08-2004 to the petitioner company and after receiving the demand notice, the petitioner company had paid an amount of Rs.70,000/- out of Rs.2,11,773/- and later the respondent bank issued the possession notice dated 20-09-2005. Further, it is also stated that aggrieved by the possession notice issued by the respondent, the petitioner company filed S.A.42 of 2006 challenging the possession notice before the Debt Recovery Tribunal, Hyderabad under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(for short ‘the Act’) and the said S.A. is still pending. Further it is stated that the said notice dated 20-09-2005 is contrary to the provisions of the Act and therefore the petitioner had challenged the said notice before the Debt Recovery Tribunal, Hyderabad. It is also stated that the S.A.No.42 of 2006 is pending before the Debt Recovery Tribunal and though the said S.A. is pending, the representatives of the respondent bank used to make telephone calls and harassed the petitioner and immediately the petitioner company had issued notice dated 26-09-2007 which was duly received and acknowledged by the respondent bank. It is also further stated that under Sec.21 of the Act: (1) The Central Government may, by notification, appoint any person for the purpose of registration of transaction relating to Securitisation, reconstruction of financial assets and security interest created over properties, to be known as Central Registrar. (2) The Central Government may appoint such other officers with such designations as it thinks fit for the purpose of discharging, under the superintendence and direction of the Central Registrar, such functions of the Central Registrar under this Act as he may, from time to time authorize them to discharge. Further it is stated that at this juncture the respondent bank represented by its Chief Manager Sri K. Satyanarayana filed Crl.M.P.No.5739 of 2007 before the Chief Metropolitan Magistrate, City Criminal Courts, Hyderabad under Sec.14 of the Act praying the Court to pass an order to take physical possession of the Mortgaged Property and also to appoint an Advocate Commissioner and direct the Advocate Commissioner to take the physical possession of the property. It is also stated that without issuing any notice to the petitioner company, the respondent bank filed a Criminal M.P.No.5739 of 2007 before the Chief Metropolitan Magistrate even then the S.A.42 of 2006 is pending before the Debt Recovery Tribunal, Hyderabad. It is further averred that basing on the Crl.M.P.No.5739 of 2007 filed by the respondent bank the Chief Metropolitan Magistrate, City Criminal Courts, Hyderabad had passed an order on 26-11-2007 appointing Smt. B. Shailaja as Advocate commissioner to take possession of the properties and handover the same to the respondent bank for further proceedings. It is further stated that without furnishing the details and by suppressing the facts, the respondent bank filed the Crl.M.P.No.5739 of 2007 before the Chief Metropolitan Magistrate, Hyderabad and basing on the information submitted by the respondent bank the Court without giving an opportunity to the petitioner company passed an order directing the respondent bank to take over the physical possession of the property which is contrary under the provisions of law and therefore, it is liable to be set aside. It is further stated that basing on the orders passed in Crl.M.P.No.5739 of 2007 by the Chief Metropolitan Magistrate, Hyderabad, the representatives of the respondent bank Sri K. Satyanarayana and Sri Bapuji visited at 11.30 a.m. on 01-12-2007 and threatened all the tenants to vacate the premises, as the representatives of the respondent bank were directed to takeover the possession hence forth. In such circumstances, the writ petitioner approached this Court praying for appropriate reliefs. 5. In the counter affidavit filed by the respondent-bank, sworn by the Chief Manager, it is stated that the writ petition itself is not maintainable against the execution of the order dated 26-11-2007 passed by the Chief Metropolitan Magistrate, Hyderabad in Crl.M.P.No.5739 of 2007 by exercising the powers under Sec.14 of the Act. It is further stated that the petitioner along with Smt. R.Jyothirmai, Mr.R.Karthik approached the petitioner-bank for Security Over Draft(SOD) limit of Rs.8.00 lakhs. Smt. R.Jyothirmai offered her property premises bearing No.1-2-375/1A, admeasuring 94.71 sq. yards situated at Domalguda, Gaganmahal, Hyderabad fully described in the Schedule as security for repayment of the said Secured Over Draft limit. At the request of petitioner, mortgagor and guarantor, respondent bank sanctioned the said SOD limit of Rs.8.00 lakhs vide sanction letter dated 11-03-2004 and the petitioner, mortgagor and guarantor executed demand promise note and other documents on 11- 03-2003. It is further stated that Smt.R.Jyothirmai, with an intention to secure the repayment to the petitioner bank of moneys that were due as on 3-5-2002 or shall due from time to time or any time due from petitioner, deposited with the respondent bank on 3-5-2002, the document of title relating to the property and created mortgage by deposit of title deeds over the said property. She also confirmed the creation of mortgage vide her letter dated 6-5-2002. The petitioner, Smt. R.Jyothirmai, Mr.R.Karthik failed to repay the liability in accordance with agreed terms and the respondent was constrained to classify the account as Non performing Asset as per the norms fixed by the Reserve Bank of India from time to time. As the petitioner, Smt.R.Jyothirmai, Mr.R.Karthik failed to pay the amounts due in accordance with the agreed terms, the respondent was constrained to invoke the provisions of the Act and issued demand notice on 03-08- 2004. The petitioner, Smt.R.Jyothirmai, Mr. R.Karthik acknowledged the said notice, but failed to pay the amount demanded in the notice within 60 days from the date of receipt of the demand notice. The petitioner filed Securitisation Appeal S.A.No.42 of 2006 challenging the demand notice before the Debts Recovery Tribunal, Hyderabad, but the Tribunal has not granted any interim orders in favour of the petitioner. As the petitioner, the mortgagor and guarantor prevented the authorized Officer from taking physical possession of the secured asset, the respondent approached the Chief Metropolitan Magistrate seeking his assistance under Sec.14 of the Act. The Chief Metropolitan Magistrate vide his orders dated 26-11-2007 in Crl.M.P.No.5739/2007 appointed an advocate commissioner to take possession of the secured asset and the said Commissioner along with the authorized officer visited the Secured Asset on 01-12-2007 to execute the Warrant of commission. Against the same, the petitioner filed the present writ petition. It is further stated that in view of the principles laid down by the Hon’ble Supreme Court in M/s. Mardia Chemicals Limited and M/s. Transcore vs. Union of India, the writ petition filed by the petitioner is not maintainable and is liable to be dismissed in limini. It is also stated that there are no grounds to invoke the jurisdiction of this court under Article 226 of the Constitution of India especially with regard to the breach of contract by the petitioner. In view of the principles laid down by the Hon’ble Apex Court in Mardia Chemicals case, the petitioner is having an effective and alternative remedy under Sec.17 of the Act, after the measures under Sec.13(4) of the Act have been taken by the respondent bank. It is further averred that under Sec.14(3) of the Act “No Act or the action of the Chief Metropolitan Magistrate done in pursuance of this section shall be called in question in any court or before any authority. In view of the above, the present writ petition is barred under section 14(3) of the Act and the same is liable to be dismissed in limini. 6. In the light of the respective stands taken by the parties, inasmuch as it is stated that the S.A. is said to be pending, an opportunity is given to the petitioner to move appropriate application in this regard, if the petitioner is so advised. Except making the said observation, no positive relief as sought can be granted in the present writ petition. 7. Writ petition is accordingly dismissed. No order as to costs. __________________ P.S.NARAYANA, J. Dated: -01-2008 rns