IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 26703 of 2008 Between: Maradi Konda Vivekananda S/o.Late Ramalingam R/o.Plot No.A-128, East Gandhinagar, Nagaram Village, Keesara Mandal, R.R. District. ..... PETITIONER AND 1 State Bank of India, Lalaguda Branch, Hyderabad. 2 State Bank of India, Authorized Officer, Stressed Assets Resolution Centre, Latha Complex, 2nd Floor, M.J. Road, Opp: Intermediate Board, Hyderabad. 3 Kolla Koteswar Rao S/o.Veeraiah R/o. N/o and lastly resided at Gokinenipalem (v) Jaggaiahpeta (M), Krishna District, A.P. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or directions more particularly in the nature of Mandamus declaring the Commissioner Warrant in Crl.M.P.No.159/2008 which issued by Chief Metropolitan Magistrate, Cyberabad, L.B.Nagar, R.R. District, dated 3.11.2008 in respect of House property consisting of ground & first floor (semi finished) on Plot No. 131 admeasuring 300 Sq. yds or 250.80 Sq. mtrs. in Sy.No. 30 & 31 situated at Nagaram Village, Keesara Mandal Regn. Sub District Shameerpet, District and region Ranga Reddy District belonging to Sri Kolla Koteshwar Rao, S/o. late Veeraiah, vide doc.No. 243/2001, dated 18.01.2001, registered at SRO, Shameerpet and bounded by: North: Plot No. 130, South by: Plot No. 132, East by 25' wide road, West by: Plot No.91 which is in my possession. Since the Respondent No.1 & 2 not followed the procedure contemplated under the SRFES, Act 2002. Since the act of the Respondent No.2 is illegal, capricious, malafide which not following appropriately in the interest of law and pass such other order or orders. Counsel for the Petitioner: MR.N.RAMANADHAM Counsel for the Respondents.: MR.M.NARENDER REDDY The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No. 26703 of 2008 ORDER: (Hon’ble Sri Justice Ghulam Mohammed) 1. This writ petition is filed challenging the commissioner’s warrant order dated 3.11.2008 issued by Chief Metropolitan Magistrate, Cyberabad, L.B.Nagar, Ranga Reddy district in Crl.M.P.No. 159 of 2008, by which the commissioner was directed to take possession of the house property belonging to 3rd respondent and handover the same to respondents 1 and 2. The commissioner’s warrant was issued at the instance of respondents 1 and 2- bank who filed an application under Section 14 (1) and (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the Act”). 2. According to the petitioner, the respondent No.3 had taken hand loan of Rs.14,00,000/- from him and also executed a promissory note on 22.5.2005 in his favour promising to repay the said amount. It is stated that having failed to repay the loan amount, the respondent No.3 had handed over possession of his house property to the petitioner as collateral purpose with an understanding that the house property shall be returned back on payment of the loan amount with interest. It is stated that the petitioner made several demands for repayment of the loan amount and also issued notices to the petitioner. It is submitted that on 2.12.2008 the commissioner visited the house for execution of warrant. It is contended by the petitioner that since he is in occupation of the house property, notice was required to be issued before warrant of commission was issued and since no such notice was issued, the impugned warrant is not sustainable in law. 3. Respondents 1 and 2 have filed counter-affidavit stating that the 3rd respondent has borrowed a home loan of Rs.6.00 lakhs on 2.8.2001, cash credit loan facility of Rs.4.00 lakhs on 2.1.2003 and personal loan facility of Rs.1.50 lakh on 11.10.2002 from 1st respondent-bank. The 3rd respondent has committed default in payment of loan amount. OA No. 267 of 2004 was filed by respondents before Debts Recovery Tribunal at Hyderabad for recovery of Rs.12,69,745-65 ps together with future interest and costs and it was decreed on 29.2.2008 against the 3rd respondent. Thereafter the respondents initiated recovery proceedings under the Act by serving a demand notice dated 8.3.2008 under Section 13 (2) of the Act on the 3rd respondent and on his failure to repay the loan amount within 60 days, the respondents also issued a possession notice dated 27.8.2008 and subsequently they obtained the warrant of commission which is impugned in this writ petition. 4. The respondent No.3-borrower has also filed counter- affidavit denying the allegations made by the petitioner and admitting that he has availed home loan from respondents 1 and 2. It is further stated in the counter-affidavit that he made a request to 1st respondent-bank to sell the mortgaged property and liquidate the loan at the earliest. It is also stated that he has taken hand loan of Rs.2.00 lakhs from the petitioner and repaid the same with interest in December, 2003 and closed the hand loan. He denied of having given possession of house property to the petitioner. 5. We have heard learned counsel for the parties. The petitioner claims to be the creditor of 3rd respondent. The 3rd respondent is the borrower and the respondents 1 and 2 have already initiated proceedings under the Act by issuing demand notice as well as possession notice. The respondents 1 and 2 have also obtained the commissioner’s warrant and when it was sought to be executed, the present writ petition is filed, which is misconceived. The petitioner has no locus standi to challenge the commissioner’s warrant. There is no privity of contract between the petitioner and the respondent-bank with respect to the house property which was mortgaged with the respondent-bank for the loan taken by the 3rd respondent. The petitioner has no legal right much less an enforceable right so to challenge the commissioner’s warrant. The learned counsel for the petitioner has drawn our attention to Section 13 (5) of the Act, which reads as under, “Any payment made by any person referred to in clause (d) of sub-section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower.” 6. It is to be noticed that the petitioner cannot have a right to stall the execution of commissioner’s warrant merely because of his alleged possession over the house property in question. The respondent No. 3 has taken a stand that he has already paid the loan amount with interest to the petitioner in December, 2003. Nonetheless, it is a private dispute between the petitioner and the respondent No.3 which can be adjudicated upon and decided in a suit filed by the petitioner. 7. In this view of the matter, this court cannot interdict the proceedings that were taken up by the respondents 1 and 2 in terms of the Act. This writ petition is misconceived and it is accordingly dismissed. No order as to costs. _____________________________ JUSTICE GHULAM MOHAMMED ________________________________ JUSTICE VILAS V. AFZULPURKAR Dt. 9.7.2009 KR ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{KURR}