IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE GHULAM MOHAMMED THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P. No.16111 of 2009 Between: G.Venkata Ramana … Petitioner And The Visakhapatnam Co-operative Bank and others … Respondents THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED THE HONOURABLE SRI JUSTICE G. CHANDRAIAH W.P. No.16111 of 2009 ORDER: (Per the Hon’ble Sri Justice Ghulam Mohammed) This writ petition has been filed seeking to issue a Writ of Mandamus declaring the proceedings initiated by the 1st respondent, Visakhapatnam Co-operative Bank, in Criminal M.P. No.6721 of 2005 before the 2nd respondent, Chief Metropolitan Magistrate, Visakhapatnam, as being arbitrary, illegal, erroneous, unconstitutional, contrary to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’) and contrary to the settled principles of law, principles of natural justice, provisions of the SARFAESI Act. The case of the petitioner, in brief, is that he obtained a loan for Rs.51,000/- from the 1st respondent on 19.10.1990 by creating equitable mortgage of his house. As per the terms of the loan agreement, the petitioner is required to pay the monthly instalment of Rs.1,500/- for a period of 34 months and interest at the rate of 6.5% per annum. The petitioner paid the instalments regularly and within ten months, he paid an amount of Rs.27,300/-. However, the 1st respondent, with a mala fide intention to squeeze more money than that to which it is entitled, started to claim excessive money by manipulating the accounts and charging higher rate of interest than that which is agreed. The petitioner disputed the same and requested the 1st respondent to issue the account copy. The 1st respondent instead of issuing the statement of account, insisted the petitioner to pay higher amounts of instalments than that was agreed. The petitioner expressed his inability to pay higher amount and sought to pay amount at the rate agreed. The 1st respondent refused to receive the money and insisted for payment of higher amounts. In addition to this, the petitioner fell sick and he could not make certain payments to the 1st respondent. It is further submitted that the 1st respondent kept quiet and did not make any demand for payment of any money but for the first time, on 30.09.2002 issued a notice demanding the petitioner to pay an amount of Rs.2,78,019/- as against the loan of Rs.51,000/-. The petitioner disputing the said amount, requested to furnish account copy on 20.11.2002. The 1st respondent instead of issuing the statement of account, highhandedly obtained the signatures of the petitioner on certain papers, which were written in English language and refused to furnish the statement of account. Thereafter, the 1st respondent issued notice on 05.03.2003 under Section 13(2) and thereafter on 21.07.2004 under Section 13(4) of the SERFAESI Act, demanding to pay an amount of Rs.2,95,632/-. Being aggrieved by the proceedings initiated by the 1st respondent, the petitioner filed O.S. No.185 of 2003 before the Junior Civil Judge, Gajuwaka and the same was dismissed owing to Section 34 of the Act. The 1st respondent also initiated proceedings under Section 14 of the Act, before the 2nd respondent for taking physical possession, in Crl.M.P.No.6721 of 2005. The petitioner being aggrieved by the proceedings initiated by the 1st respondent, preferred an appeal under Section 17 of the Act in S.A. No.40 of 2001 before the 3rd respondent, Debt Recovery Tribunal, and stay was granted by order dated 07.09.2004 on condition of depositing of Rs.50,000/- and the same was complied with. But, subsequently, the S.A. No.40 of 2001 was dismissed for default. As the petitioner fell sick, he could not take proper steps in time and so far, the petitioner had deposited Rs.1,60,000/- with the 1st respondent, as against the loan obtained by the petitioner. However, after dismissal of S.A. No.40 of 2001, the 1st respondent is pressing for passing of orders of possession in Crl.M.P. No.6721 of 2005 before the 2nd respondent. The action of the 1st respondent in initiating the action for recovery of amount, more particularly filing of petition before the 2nd respondent under the provisions of the SARFAESI Act is arbitrary, erroneous illegal, and contrary to the settled principles of law and also barred by limitation. Hence, the present writ petition. Heard the learned counsel for the petitioner and the learned standing counsel, Sri P.B. Vijay Kumar, for the respondents and at their request, this matter is disposed of at the admission stage. As stated above, the petitioner had obtained loan from the 1st respondent and after some period, he stopped payment of instalments stating that the 1st respondent is claiming excessive amount by manipulating the accounts and charging higher rate of interest than agreed and sought for statement of account, which has not been furnished by the 1st respondent. Thereafter, after issuing necessary notices as required under the SARFAESI Act, the 1st respondent eventually issued notice under Section 13(4) of the SARFAESI Act, which was published in the local news papers on 22.07.2004. Being aggrieved by the same, the petitioner filed O.S. No.185 of 2003 and the same was dismissed. Further, thereafter, the 1st respondent also initiated proceedings under Section 14 of the SARFAESI Act before the 2nd respondent for taking physical possession in Crl.M.P. No.96 of 2004, which was subsequently renumbered as Crl.M.P. No.6721 of 2005. Being aggrieved by the same, the petitioner preferred an appeal in S.A. No.40 of 2001 before the 3rd respondent and the 3rd respondent granted stay by order dated 07.09.2004 on condition of depositing of Rs.50,000/- and the same has been complied with but subsequently the said appeal was dismissed for default. Necessarily, the petitioner ought to have taken steps for restoring the appeal by filing appropriate petition. Having not done so, the opportunity, which he had to respond to the notice asking the bank to furnish the statement of accounts, has lost, and nonetheless, he has substantially deposited the money. When once the petitioner has already approached the statutory forum, under Section 17 of the Act, he has to approach the same forum for seeking for appropriate redressal of his grievance. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side and under the above circumstances, we are not inclined to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India, inasmuch as, appeal under Section 17 of the SARFAESI Act was availed of by the petitioner. Therefore, we are of the view that this writ petition is misconceived and accordingly, the same is dismissed. However, it is needless to say that though, as per notice issued under Section 13(2) on 05.03.2003, demanding the petitioner to pay an amount of Rs.2,95,632/-, if any amount is already deposited by him, pursuant to the direction given by the Court, the same shall be given credit. Nonetheless, this order does not preclude the petitioner approaching the bank to request them to furnish the statement of accounts. Further, it is also open to the petitioner to move the appropriate application before the Tribunal and the Tribunal shall dispose of the same, in accordance with law. Accordingly, this writ petition is dismissed. There shall be no order as to costs. _________________________________ JUSTICE GHULAM MOHAMMED _________________________________ JUSTICE G. CHANDRAIAH Date: 15.06.2010. Note: Issue C.C. in a week. B/o. LSK