THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION NO : 18603 of 2010 Dated: 11.8.2011 Between: Sunil Pamnani (Karta) HUF. ..Petitioner And 1. Vijaya Bank, a body corporate constituted Under the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1980 having its Head Office at Bangalore & among other Places Bank Street Branch, Hyderabad, rep., by its Authorized Officer and others. ..Respondents This Court made the following: THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION NO : 18603 of 2010 ORDER: (Per Sri Hon’ble Sri Justice N.V. Ramana) Challenging the order dated 7.6.2010 passed in Crl.M.P.No.1209 of 2010 by the Chief Metropolitan Magistrate, Hyderabad, the present writ petition is filed. Heard the learned Counsel for both the parties and perused the material available on record. The 1st respondent-Vijaya Bank has filed Crl.M.P.No:1209 of 2010 under section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 before the learned Chief Metropolitan Magistrate, Hyderabad. The learned Judge having observed that the fact that the mortgaged property is developed into a residential apartment will not curb the rights of the Bank to enforce the security, and in the light of the principles laid down by this Court, the mortgagee is entitled to any improvement/accession to the mortgaged property and the subsequent purchaser if any of such property has to work out his remedies against the mortgager and as such there is a prima facie case to issue a warrant under section 14 of the said Act, allowed the petition appointing Sri M.Surender Kumar, as Advocate Commissioner to take possession of the property and hand over the same to the Bank with a liberty to take aid of the police. Having aggrieved by the same, the present writ petition is filed by the petitioner. According to the petitioner, he purchased Flat No:203 on second floor in the building known as “MAY FAIR RESIDENCY” from respondents 2 to 6 and from the date of purchase of the said plot, he is in possession and enjoyment of the said flat and in the sale deed, it was clearly mentioned that the said property is free from all encumbrances including the mortgage. While so, he received a letter on 21.3.2009 from the 1st respondent-Bank wherein it was informed that Respondents-2 to 6 were sanctioned five housing loans for purchase of the plot No:12 and all the transactions are subject to the mortgage and the Bank has already initiated recovery proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. On receipt of the said notice, the petitioner along with others filed S.A.No:332 of 2009 on the file of the Debt Recovery Tribunal, Hyderabad and the said application is pending. While so, pending the said application before the Debt Recovery Tribunal, the respondent-Bank filed Crl.M.P.1209 of 2010 on the file of the Chief Metropolitan Magistrate, Hyderabad. It is the further case of the petitioner that after the appointment of the Advocate Commissioner, Respondents-2 to 6 who have taken the loans from the 1st respondent-Bank, have deposited a sum of Rs.63,81,000/- on 22.7.2010 with the Bank and also assured the Bank that they will clear the entire loan amount after negotiations with the Bank and even after deposit of the said amount, the Advocate Commissioner once again visited the premises and insisted the petitioner to pay the amounts to the Bank. Therefore, the present writ petition is filed. Heard. It is pertinent to note that no interim order has been passed in this writ petition. It is the case of the respondent-Bank that respondents-2 to 6 have purchased Plot No:12 by mortgaging plot No:12 with it whereas it is the case of the petitioner that he purchased Flat No:203 under a registered sale deed wherein it was clearly mentioned that the said property is free from all encumbrances including the mortgage. There is no dispute that the mortgaged property is developed in to a residential apartment and the principles laid down by this Court in the decision reported in M.K. RAMESH KUMAR VS. ASSET RECONSTRUCTION COMPANY (INDIA) LTD ([1]) make it clear that the mortgagee is entitled to any improvement/accession to the mortgaged property and the subsequent purchaser if any of such property has to work out his remedies against the mortgager. In this view of the matter, we are of the considered view that the order impugned in the writ petition does not suffer from any irregularity or illegality and thereby it does not warrant any interference by this Court. As such, the writ petition is liable to be dismissed. At this stage, it is submitted by the learned counsel for the petitioner that the writ petitioner has paid some amount during the pendency of the Crl.M.P before the Court below and now, the balance of amount due is only to the extent of Rs.50,000/-. But, the said aspect is disputed by the respondent-Bank. However, it is for the parties to settle the said aspect amicably with reference to the material on record as to the alleged payment and the balance of due amount. Accordingly, the writ petition is dismissed. However, the petitioner is at liberty to approach the respondent-Bank to settle the matter. No order as to costs. __________________ Justice N.V. Ramana DATE: 11.8.2011 ____________________ Justice P. Durga Prasad nn THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION NO : 18603 of 2010 (Order delivered by the Hon’ble Sri Justice N.V. Ramana) 11.8.2011 [1] AIR 2008 AP 45