IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.P.No.18093 of 2010 Dated:28-09-2011 Between: I.Bhramaramba. ….Petitioner. And The Indian Overseas Bank and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD W.P.No.18093 of 2010 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This Writ Petition is filed for issuance of writ of Mandamus declaring the respondent Nos.1 and 2 are not entitled to interfere with the peaceful possession and enjoyment of the property bearing D.No.9-9-1, Marupilla Vari Veedhi, Brahmin Street, Kothapet, Vijayawada and their action as illegal and ultra virus to the provisions of Article 14 and 300-A of the Constitution of India besides being in violation of the doctrine of principles of natural justice. According to the petitioner the above said property originally belongs to her grandfather by name M.Sanyasi Patrudu, who died intestate leaving behind him his 4 sons, amongst which her paternal grandfather late Sri Ramulu is his youngest son, who died on 21.09.1967 leaving behind him his 4 sons including her father lat M.Sanyasi Babu and her father died on 25.04.2004 leaving behind him his 3 sons and 4 daughters. The 3rd respondent is his 2nd son, whereas she is his 2nd daughter. Her father entered into a deed of partition dated 15.02.1996 with his brothers Sukhder and Sarangapani and his brother’s son Sri Ramulu and Venkateswara Rao. As per the recitals of the registered partition deed “A” schedule properties, which is the subject mater of the writ petition, fell to his share. Thus, the subject matter of the writ petition is ancestral property fell to the share of her father. Consequent upon the death of her father on 25.04.2004 as per the provisions of Hindu Succession Act, she is one of the sharers in the property along with other sharers. She is residing in the property in the capacity of one of the sharers. She came to know that the 3rd respondent by making a representation to the 1st respondent to the effect that he is the absolute owner of the property by concealing the material facts kept the same as security and borrowed a sum of Rs.5,00,000/- on 22.12.2006 and as he failed to discharge his obligation under the terms and conditions of the loan agreement, the respondent Nos.1 and 2 have declared the said loan as “NPA” and initiated the proceedings under the provisions of SARFAESI Act for recovery of the amount allegedly due and payable by him. The respondent Nos.1 and 2 are contending that they have taken symbolic possession of the property in exercise of powers conferred under Section 13 (4) of the SARFAESI Act read with Rule 9. Respondent Nos.1 and 2 are trying to take physical possession of the property under Rule 8 (1) of the Rules framed under the Act and the said Rule comes into operation only to avoid the possible disputes of creating 3rd party interest over night by the 3rd respondent, which is not the case in the present circumstances of the case. Since the petitioner is claiming right over the property independently without any reference to 3rd respondent, the respondent Nos.1 and 2 have no right to deal with the portion of the property, which is in possession of the petitioner. Hence, she is entitled to writ of Mandamus by declaring that the respondent Nos.1 and 2 are not entitled to take possession of the property. Respondent Nos.1 and 2 opposed the said application by filing counter pleading that the 3rd respondent availed an amount of Rs.5,00,000/- towards housing loan on 22.12.2006 by mortgaging the subject matter property. As the 3rd respondent could not pay the amount in spite of several demands, the said loan was declared as ‘NPA’ on 30.06.2009, as such the 1st respondent bank has initiated proceedings under SARFAESI Act and issued notice under Section 13 (2) of the Act demanding him to repay the outstanding amount of Rs.5,37,832/- within 60 days from the date of the notice. Since there is no response from the 3rd respondent, the 1st respondent bank proceeded further and issued possession notice on 02.12.2009. The 3rd respondent with an intention to escape from the liability and to restrain the bank for availing the remedies conferred under SARFAESI Act started filing litigation through his sisters one after the other. Firstly the 3rd respondent got filed a Securitisation Appeal vide S.A.No.5 of 2010 through his sister Smt.Peesa Naga Mani before Debts Recovery Tribunal, Visakhapatnam and the same was dismissed on 06.07.2010. Being unsuccessful in the attempt before the Debts Recovery Tribunal, Visakhapatnam the 3rd respondent got filed the present petition through his another sister i.e. the writ petitioner herein. They further pleaded that the writ petition is not maintainable in view of the availability of the alternative and efficacious remedy under Section 17 (1) of the SARFAESI Act. They denied about the petitioner inheriting the right over the mortgaged property. According to them the amendment of Section 6 and 29-A of Hindu Succession Act i.e. Act 39/2005 came into force with effect from 09.09.2005, by that time the partition was already been effected by way of registered partition deed, as such the petitioner inheriting the right over the property does not arise and the petitioner has no right title over the said property. All these questions are to be determined by way of a Secukritisation Appeal under Section 17 (1) of the Act but not in a writ petition and prayed for dismissal of the writ petition. The writ petitioner has filed a reply to the said counter pleading her ignorance about her sister P.Nagamani filing S.A.No.5 of 2010 before the Debts Recovery Tribunal, Visakhapatnam and dismissing the same on 06.07.2010. She also denied about having alternative relief and efficacious remedy under Section 17 (1) of the SARFAESI Act. She further pleaded that after filing of the writ petition, she has filed O.S.No.1011 of 2010 on the file of I Additional Senior Civil Judge, Vijayawada praying for a decree and judgment in her favour for partition of the plaint schedule property into 7 equal shares with reference to the good and bad qualities and deliver separate possession of one such share to her and the alleged mortgage created by 3rd respondent in favour of respondent Nos.1 and 2 is null and void and not binding on her. She also filed I.A.No.1558 of 2010 and obtained Statusquo Order on 16.08.2010. She further pleaded that the validity of the mortgage allegedly executed by the 3rd respondent in favour of respondent Nos.1 and 2 is a contentious issue before a competent Civil Court, to which the respondent Nos.1 and 2 are parties, as such they are not entitled to continue the proceedings under SARFAESI Act. The writ petitioner’s counsel has pleaded that the petitioner is in possession of the property and she is having right over the said property and by suppressing the said fact the 3rd respondent might have mortgaged the said property in favour of respondent Nos.1 and 2 and the same is not binding on the petitioner and she has already filed a suit before the competent Civil Court for partition of the property and until the dispute is resolved by the competent Civil Court, the respondent Nos.1 and 2 are to be restrained from proceeding under SARFAESI Act. The respondent Nos.1 and 2’s counsel on the other hand has pleaded that the writ petition is not maintainable in view of the alternative remedy available under Section 17 (1) of the Act. He further pleaded that the 3rd respondent in order to prevent from them for taking steps under the SARFAESI Act, filing one petition or other through his sisters and one of his sisters has filed S.A.No.5 of 2010 and after dismissal of the same by Debts Recovery Tribunal pressed the writ petitioner into service and got filed the present writ petition. He further pleaded that as the 3rd respondent has mortgaged the property in favour of 1st respondent bank, they are entitled to proceed against the said property under SARFAESI Act, as such the writ petition is liable to be dismissed. There is no dispute that the property, which is the subject matter in the writ petition, was mortgaged by the 3rd respondent in favour of the 1st respondent bank and obtained a loan and as he has failed to repay the said loan amount, the respondent Nos.1 and 2 have taken steps under the SARFAESI Act. The writ petitioner is claiming her right over the said property as one of the shares of the said property. She has also pleaded that she is in possession of the property; as such she cannot be dispossessed from the said property. Even though the respondent Nos.1 and 2 have pleaded that one of her sisters filed S.A.No.5 of 2010 before Debts Recovery Tribunal, Visakhapatnam and the same was dismissed on 06.07.2010, the petitioner except pleading ignorance could not explain the same. Admittedly, the present writ petition was filed after the disposal of said S.A.No.5 of 2010 by the Debts Recovery Tribunal, Visakhapatnam. Even if there is a dispute with regard to right and title over the property between the writ petitioner and 3rd respondent, the same has to be adjudicated in appropriate forum and the writ petitioner has already filed a suit for partition and their rights are to be adjudicated in the said suit and the title disputes cannot be decided in the writ proceedings. Admittedly, the writ petitioner has got an alternative remedy under Section 17 (1) of the SARFAESI Act, by way of filing appeal before the Debts Recovery Tribunal, which is the competent forum to decide all the issues raised by the writ petitioner. Simply because, she is claiming possession over the said property, respondent Nos.1 and 2 cannot be restrained from dispossessing her from the said property when they got every right to proceed against the property mortgaged in their favour by the 3rd respondent for realizing the amount under the SARFAESI Act. Therefore, the writ petitioner is not entitled for any relief as claimed. In the result, the writ petition is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:28-09-2011 Ksp