IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED and THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 12301 of 2009 Between: 1 Smt. Maturi Sukanya, W/o. Maturi Ramesh Babu, Hindu, Shop No. 29, Near PSM School Complex, Pulipativari Street, Vijayawada - 520 001. 2 Allam Ramu, S/o. Tata Rao, Hindu, R/o. 3rd Floor of House No. 11-40-128, 129 Assessment No. 8158 Block No.1, Municipal Ward No. 11/2 situated at Pulipati Vari Street, I Town Vijayawada. ..... PETITIONERS AND State Bank of India, Stressed Assets Resolution, Center, Zonal Office, Suryaraopet, Vijayawada, Rep. by its Authorized Officer ..... RESPONDENT The Court made the following : ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed seeking a writ of Mandamus to declare the action of the respondent bank in taking possession of third floor of House No.11-40-129, Assessment No.8158, Block No.1, Municipal Ward No.11/2, situated at Pulipati Vari Street, I Town, Vijayawada, of the first petitioner, which is not mortgaged by the first petitioner with the respondent bank, pursuant to the Possession Notice, dated 04.06.2009, as illegal and arbitrary. 2. The respondent bank sanctioned mortgaged loan facility of Rs.15,00,000/- on 26.09.2001 to the first petitioner for running a shop under the name and style M/s. Ramesh Fancy Stores and she deposited the title deeds in respect of the property i.e., second floor of the said house. Since the first petitioner failed to pay the installments, the loan account was classified as non-performing asset and the total outstanding amount comes to Rs.16,55,991/-. The respondent bank filed O.A.No.87 of 2004. In the meanwhile, a demand notice, dated 23.11.2007, was issued by the respondent bank under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for Short ‘the Act’) demanding the first petitioner to repay the entire due amount within 60 days. As she could not repay the loan amount, the respondent bank issued a notice, dated 21.07.2008, under Section 13(4) of the Act. Thereafter, on 07.02.2008, the respondent bank has taken symbolic possession of the mortgaged property i.e., second floor of the said house. Subsequently, the possession of the third floor of the said house was also taken by the respondent bank. The respondent bank, in the counter affidavit in I.A.No.47 of 2008 in O.A.No.87 of 2004, stated that only the second floor of the said house was mortgaged. The grievance of the first petitioner is that the respondent bank has taken possession of the third floor of the said house which was not at all mortgaged, while obtaining the loan. 3. A counter affidavit has been filed by the respondent bank, inter alia stating that the first petitioner created equitable mortgage by deposit of title deed in respect of the second and third floors of the said house. A notice under Section 13(2) of the Act was issued on 23.11.2007 demanding a sum of Rs.16,55,991/- along with interest from 30.04.2004 till realisation. As the loan amount was not paid, a possession notice was issued on 21.07.2008 and the same was affixed on the property in question. After issuance of the possession notice, symbolic possession was taken. It is stated that the third floor was an integral part of the second floor. 4. The learned counsel for the petitioners vehemently contended that the first petitioner has mortgaged only the second floor and that the third floor is not a mortgaged property. Therefore, the action of the respondent bank is not sustainable. 5. Heard the learned counsel on either side and perused the record. It is brought to our notice by the learned counsel for the respondent bank that as per the document, dated 28.09.2001, issued by the Assistant General Manager, State Bank of India, Vijayawada, both the second and third floors of the said house are mortgaged with the bank. Further, in the counter affidavit, it was stated that the second and third floors of the said house was mortgaged. In the circumstances, the contention of the petitioners that the third floor is not mortgaged while obtaining loan, cannot be sustained. 6. In the circumstances, we do not find any infirmity in the action of the respondent bank as contemplated under the provisions of the Act. 7. Hence, the Writ Petition is dismissed. No costs. ______________________ GHULAM MOHAMMED, J ______________________ VILAS V. AFZULPURKAR, J Date: 14th July, 2009 KL/STP