IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIFTEENTH 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 : 7384 of 2009 Between: P. Satyanarayana S/o. Kondaiah R/o. Kattipudi (Vill.), Shankavaram Mandal, East Godavari District. ..... PETITIONER AND 1 Visakha Cooperative Bank, Payakaraopet, District Visakhapatnam, rep. by its Branch Manager. 2 The Andhra Pradesh Cooperative Tribunal, Visakhapatnam, rep. by its SCDR / Secretary. 3 The District Collector, East Godavari District at Kakinada. 4 The Mandal Revenue Officer, Shankavaram Mandal, East Godavari District. .....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 an appropriate writ more in the nature of Writ of Mandamus declaring the action of the 1st respondent Bank in taking over the possession of my house under Zone No.1- 101-A and the house site admeasuring 400 sq. yards situated in Survey Nos. 198 and 199/9 of Kattipudi Village, Shankavaram Mandal, East Godavari District, purporting to realize the loan amount sanctiloned to me with interest accured thereon, despite the property belonging to me vide H.No.1-101 situated at Kattipudi Village, Shankavaram Mandal, East Godavari District worth Rs.4 lakhs was already taken possession of on 19.2.2004 for realization of the dues of Rs.3,63,467/- as being arbitrary, illegal and violative of Articles 14, 21 and 300-A of the Constitution of India and equally the action of the 2nd respondent in not entertaining the Original petition filed by me seeking for appropriate relief against the 1st respondent Bank herein and consequently direct the respondents to forthwith return the articles which were seized on 12.03.2009 and not to interfere with the possession and enjoyment of the petitioner in respect of the house covered under Zone No.1-101-A and the house site admeasuring 400 sq. yards situated in Survey Nos. 198 and 199/9 of Kattipudi Village, Shankavaram Mandal, East Godavari District, and issue such othe writ or order or direction Counsel for the Petitioner:MR.CH.SAMSON BABU Counsel for the Respondent No.: GP FOR COOPERATION The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This writ petition is filed seeking a Writ of Mandamus declaring the action of the first respondent-Bank in taking over the possession of the house covered under Zone No. 1-101 A and the house site admeasuring 400 sq. yds situated in S.No. 198 and 199/90 of Kattipudi Village, Shankaram Mandal , East Godavari District as arbitrary, illegal and consequently direct the respondents to forthwith return the articles which were seized on 12.3.2009 and not to interfere with the possession and enjoyment of the petitioner’s property in question. Brief facts of the case are that the petitioner obtained loan of Rs. 2 lakhs on 21.12.1999 from the first respondent-Bank and as a collateral security for its payment, he pledged two RCC houses. It is stated that due to the situations beyond his control the petitioner defaulted in making the repayment of loan amount and by April 2005, the amount payable to the first respondent- Bank was Rs. 3,63,467/- including the interest part. It is also stated that the first respondent-Bank appears to have ordered the Mandal Revenue Officer through the District Collector to take possession of the property belonging to the petitioner for realization of a sum of Rs. 3,63,467/- due to it under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for Short ‘SARFAESI Act’). Accordingly, the Mandal Revenue Officer on 2.2.2005 took possession of the petitioner’s house No. 1-101 situated at Kattipudi Vilage, Shankavaram Mandal, East Godavari District valuating the cost of the building as Rs. 4 lakhs. It is further stated that the respondents instead of recovering the amount of Rs. 3,63,467/- from the property seized, tried to take possession of the other house bearing No. 1-101-A as well as the house site admeasuring 400 sq. yards situated at Kattipudi Village, Shankavaram Mandal, East Godavari District. As the District Collector, East Godavari District, Kakinada gave a telegraph order to the Mandal Revenue Officer on 3.3.2005, the petitioner challenged the proceedings by way filing Writ Petition No. 5621 of 2005 and this Court granted interim stay on 18.3.2005 in WPMP No. 47438 of 2005, not to interfere with the possession of the house bearing No. 1-101-A and the house site admeasuring 400 sq.yards, both situated at Kattipudi Village, Shankavaram Mandal, East Godavari District and subsequently the Writ Petition was withdrawn. It is further submitted that the fist respondent-bank on 12.3.2009 with the help of the Revenue Authorities broke open the lock of the house in question and took away the entire household articles worth more than Rs. 4 lakhs and cash of Rs. 1,80,000/-and locked the house and thereafter a notice was issued under Section 13(4) of the SRFAESI Act on 16.3.2009 stating that if amounts are not discharged within thirty days, the assets would be auctioned. Aggrieved by the same, the petitioner filed OP before the second respondent-Andhra Pradesh Cooperative Tribunal, Visakhapatnam and the same was also dismissed as not maintainable as the notice was issued by the Cooperative Bank under Section 37 of the SRFAESI Act. Then the petitioner approached the Debts Recovery Tribunal at Visakhapatnam and the Debts Recovery Tribunal has refused to entertain the case. Feeling aggrieved by the same, the present Writ Petition has been filed. In the counter filed on behalf of the first respondent-Bank, it is stated that when the petitioner defaulted in making repayment, a notice under Section 13(2) of the SRFAESI Act was issued on 25.2.2003 and he received the same on 19.3.2003. It is also stated that as there is no response to the notice from the petitioner, the authorized officer took symbolic possession of the secured asset on 12.6.2003 as per Section 13(3) of the SRFAESI Act. It is also stated that the Bank filed a petition before the Collector and District Magistrate Kakinada who passed order dated 19.12.2004 and advised the Mandal Revenue Officer to take possession of the property and hand it over to the authorized officials of the Bank and accordingly the Mandal Revenue Officer had taken possession of only a portion of the house consisting of six rooms part of the secured asset and has advised that the remaining portion will be taken possession after a week and allowed the petitioner to stay for a week on humanitarian grounds. It is further stated that the bank has nothing to do with the contents of the almirahs because they are all under lock and the key and the keys are with the petitioner only. It is stated that the Bank Officials have not auctioned the property seized till now and if the petitioner pays the outstanding amount due, there is no necessity for it to sell these houses, which constitute a single property. The learned counsel appearing for the petitioner contended that the Bank has seized the property worth Rs. 4,00,000/- but the amount due is only Rs. 3,63,467/- only and they have kept the property idle for four years, by virtue of which he has been mulcted with interest because. On the other hand, the learned counsel appearing for the respondent-Bank contended that the petitioner has mortgaged the schedule property in question with the bank and there are two reasons for not proceeding with the sale. First reason is that the petitioner himself has filed writ petition and obtained stay, which prevented the Bank from not proceeding with the auction and secondly the petitioner himself has broke open the lock and entered into the premises unauthorizedly and because of this action on the part of the petitioner, he cannot be shown any indulgence. We have heard the learned counsel appearing for both sides and also perused the material made available on record. As stated in the counter, the outstanding loan amount as on 31.3.2009 is Rs. 7,47,160/-. The petitioner has already availed alternative remedy of filing an appeal before the Debts Recovery Tribunal, wherein the Tribunal has refused to entertain the case and returned the plaint and there is no inaction on the part of the Bank and because of the petitioner approached this court and obtained stay, the Bank was prevented from taking any action to sell the property and the property was kept idle for four years. In the above facts and circumstances of the case, we are not inclined to grant any relief to the petitioner and accordingly, the Writ Petition is liable to be dismissed. However, as the petitioner is prepared to settle the account of the Bank, we deem it appropriate to permit the petitioner to make a representation to the first respondent-Bank ventilating all his grievances within two weeks from today. On such representation being made, the first respondent-Bank shall consider and dispose of the same within two weeks thereafter and pass appropriate orders and communicate the same to the petitioner. Till the bank passes an order or takes decision, no coercive steps shall be taken by the Bank against the petitioner. The learned counsel appearing for the petitioner submits that the petitioner is prepared to take movable property, which is lying before the Bank. As the petitioner is prepared to take the movable property, which is lying before the first respondent- Bank, and as represented by the Standing Counsel appearing for the first respondent-Bank that the Bank is incurring huge expenses for maintaining the property, it is open to the first respondent-Bank to deliver the movable property to the petitioner. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ VILAS V. AFZULPURKAR,J Dt. 15.7.2009 KA Note: Furnish copy in two days. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD Copies