IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 21173 of 2007 Between: Tammineedi Venkateswara Rao, S/o Sri Tammineedi Venkata Narayana, R/o D.No.50-84-11/2, Madhura Nagar, Seethampeta, Visakhapatnam-16. ..... PETITIONER AND 1 Union Bank of India, represented by its Chief Manager, Gopalapatnam Branch, Visakhapatnam. 2 Talari Narasimha Murthy @ Chanti, S/o Satyanarayana Murthy, R/o D.No.48-2-3, Srinagar, Visakhapatnam. .....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 to issue a writ, order or direction more particularly one in the nature of mandamus declaring the possession notice dt.20-01-2007 of the 1st respondent in respect of the plot No.26, Door No.48-2-3 in S.No.686, TP No.20/54 part situated at Srinagar, Visakhapatnam as illegal, arbitrary and consequently direct the 1st respondent to consider the Legal Notice dt.20-03-2007 issued by the petitioner, and pass suchother order or orders as this Hon'ble Court deems fit and proper in the circusmtances of the case. Counsel for the Petitioner:MR.P.SRI RAGHU RAM Counsel for the Respondent No.: . The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR W.P.No.21173 of 2007 ORDER: (Per Ghulam Mohammed, J) This writ petition is filed seeking a writ of Mandamus to declare the possession notice dated 20.01.2007 of the first respondent Bank in respect of Plot No.26, Door No.48-2-3 in S.No.686, TP No.20/54 part situated at Srinagar, Visakhapatnam, as illegal and arbitrary. 2. One Dr.Saladi Veeravenkata Satya Nageswara Rao obtained loan from the respondent Bank and the second respondent has created equitable mortgage in favour of the first respondent Bank on 6.1.2003 by standing as guarantor to the loan amount. Thereafter, it appears that the second respondent has borrowed some amount from the petitioner on 17.5.2003. Subsequently a suit was filed by one Bogi Nageswara Rao in collusion with the second respondent and the same was decreed and EP proceedings were initiated for sale of the property mortgaged to the respondent Bank. On coming to know about the fraudulent acts, the respondent Bank has filed a suit for setting aside the decree and the judgment and simultaneously, the respondent Bank has initiated proceedings under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) and subsequently a notice was issued under Section 13(4) of the Act for taking possession of the mortgaged property. Aggrieved by the notice under Section 13(4) of the Act, the petitioner filed the present writ petition. 3. It is to be noticed that the second respondent is the owner of the plot and when once he has executed equitable mortgage in favour of the respondent Bank on 6.1.2003, the respondent Bank has prior charge over the property of the second respondent and the respondent Bank initiated proceedings under the Act. If the petitioner has advanced any loan to the second respondent, he can as well file a civil suit. The contention of the petitioner that the petitioner has obtained encumbrance certificate and it does not disclose that the property was mortgaged, cannot be sustained, since the encumbrance certificate has nothing to do with the mortgage of the property. Since the respondent Bank has prior charge over the property of the second respondent, the proceedings initiated by the respondent Bank by invoking the provisions of the Act cannot be found fault. We do not find any infirmity in the impugned notice so as to call for interference by this court under Article 226 of the Constitution of India. 4. Hence, the writ petition is dismissed. However, this order does not preclude the petitioner from availing the remedies permissible under law. No costs. _____________________ GHULAM MOHAMMED,J _____________________ VILAS V. AFZULPURKAR 22-06-2009 Stp ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{RS}