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2019 DIGILAW 336 (AP)

Konda Krishnam Raju v. B. Sathish

2019-11-22

AKULA VENKATA SESHA SAI, U.DURGA PRASAD RAO

body2019
JUDGMENT : Akula Venkata Sesha Sai, J. 1. This is an application filed under Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC'), by respondent No. 5 in the writ petition, praying for a direction to the respondents 1 and 2-writ petitioners to deliver vacant physical possession of the subject property either to respondent No. 3 Bank or to the petitioner herein. 2. Respondents 1 and 2 herein filed the main writ petition assailing the order passed by the Collector and District Magistrate, East Godavari District at Kakinada, dated 14.10.2016 under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the Act, 2002'). According to respondents 1 and 2-writ petitioners, they have been in possession of the subject property since 25.2.2011 and running a hotel in the schedule premises under a tenancy and the petitioner herein is the landlord. Initially, the writ petition came up before the composite High Court on 27.10.2016. A Division Bench of the composite High Court passed an interim order in the main writ petition and the operative portion of the said order dated 27.10.2016 reads as under: "The petitioners are admittedly tenants of the property, whose possession has been taken under Section 14 of the SARFAESI Act. Admittedly, there is a suit for possession filed by the 5th respondent/landlord/borrower against the petitioner. Pending suit, the petitioners are admittedly depositing rent to the tune of nearly Rs. 2,00,000/- into the civil Court and this amount is being withdrawn by the Bank for the past two years. In such circumstances, we are of the considered view that the following directions will meet the ends of justice and take care of the interests of all the parties concerned: (1) The Bank shall hand over possession of the property to the petitioners temporarily subject to further orders of this Court. (2) The Bank shall initiate auction for the sale of the property and proceed with the auction. (3) It is open to the petitioners to participate in the auction. (4) In the meantime, it is also open to the 5th respondent/borrower to bring any prospective buyer to purchase the property by private treaty from the Bank. (5) If the petitioners happen to be the successful bidders in the auction, their possession shall continue subject to their complying with the conditions of sale. (4) In the meantime, it is also open to the 5th respondent/borrower to bring any prospective buyer to purchase the property by private treaty from the Bank. (5) If the petitioners happen to be the successful bidders in the auction, their possession shall continue subject to their complying with the conditions of sale. If the petitioners are not the highest bidders, they shall surrender possession to this Court to enable the Bank to hand it over either to the successful bidder in the auction or to the prospective buyer brought forthwith by the 5th respondent under private treaty. (6) During the period when the petitioners are in occupation, namely, from the date of the Bank handing over possession till the finalization of the issue, the same rent, as was paid earlier, shall be directly deposited by the petitioners to the credit of the Bank. All other issues would be sorted out in the next hearing. Post on 5.12.2016 'for orders'." It is not in controversy that in terms of the order passed by the Collector and District Magistrate dated 14.10.2016, possession of the subject property was taken over by respondent No. 5 herein-bank, from whose custody respondents 1 and 2-writ petitioners herein took delivery of the property pursuant to the abovesaid order of this Court. Thereafter, on a vacate application filed by the petitioner herein, an order was passed directing the respondents 1 and 2-writ petitioners to pay the arrears. Eventually, the main writ petition came up for consideration before this Court, and this Court disposed of the writ petition by way of an order dated 30.4.2019. Following is the relevant portion of the said order. "11. In the instant case, the registered lease deed executed in favour of the petitioners herein by way of Document No. 1499 of 2011, dated 25.2.2011, is not in dispute. It is the case of the petitioners herein that without disclosing the prior mortgage in favour of the respondent No. 3-bank, respondent No. 5 herein leased out the subject property in their favour, as such, their lease is liable to be protected under Section 17(4-A) of the Act. It is the case of the petitioners herein that without disclosing the prior mortgage in favour of the respondent No. 3-bank, respondent No. 5 herein leased out the subject property in their favour, as such, their lease is liable to be protected under Section 17(4-A) of the Act. The judgment relied on by the learned Counsel for respondent No. 5 in Kalabharati Advertising's case (supra), in the considered opinion of this Court, would not render any assistance to respondent No. 5 herein as it is the categorical case of the petitioners that without disclosing existence of the prior mortgage in favour of the respondent No. 3-bank, they were inducted into possession of the subject property. In these circumstances, in order to have a quietus to the entire problem and to have an adjudication of the tenancy claimed by the petitioners herein, this Court deems it appropriate to direct the petitioners to file appropriate application before the Debts Recovery Tribunal concerned, within a period of two weeks from the date of receipt of a copy of this order, against the steps taken under Section 13(4) of the Act, which are impugned in the present writ petition. If any such application is filed within the time stipulated above, the same be considered and appropriate orders be passed strictly in accordance with law, as expeditiously as possible. In the said application, the person who paid the amount to respondent No. 3-bank pursuant to the orders of this Court, shall also to be impleaded as respondent. It is also made clear that till disposal of the said application before the Debts Recovery Tribunal, the petitioners herein shall deposit the lease amount every month regularly, including arrears, if any, before the Debts Recovery Tribunal concerned. It is also made clear that the interim order granted by this Court dated 27.10.2016 shall continue to operate for a period of four weeks from today. Status quo as on today with regard to possession shall be maintained for a period of four weeks from today. 12. In the manner indicated supra, the writ petition stands disposed of. There shall be no order as to costs of the writ petition." 3. Status quo as on today with regard to possession shall be maintained for a period of four weeks from today. 12. In the manner indicated supra, the writ petition stands disposed of. There shall be no order as to costs of the writ petition." 3. It is averred in the affidavit filed in support of the present application, as advocated by the learned Counsel for the petitioner Sri Ambadipudi Satyanarayana, that respondents 1 and 2 herein are neither paying the lease amounts nor they have filed any application before the Debts Recovery Tribunal against the steps taken under Section 13(4) of the Act, 2002, within the period stipulated by this Court in the above referred order i.e., two weeks. It is also the submission of the learned Counsel for the petitioner in the present application that though, earlier, respondents 1 and 2 paid the lease amounts till the disposal of the writ petition, they stopped paying the lease amounts subsequent to disposal of the main writ petition, but continuing in possession of the subject property. It is the further submission of the learned Counsel that since respondents 1 and 2 secured possession of the property in terms of the orders of this Court and as they did not comply with any one of the orders passed by this Court, status quo ante is required to be restored and the possession should be delivered either to respondent No. 5 Bank or to the petitioner herein. 4. On the other hand, it is vehemently contended by the learned Counsel Sri Prabhala Rajasekhar, representing Smt. A. Anasuya, for the respondents 1 and 2-writ petitioners that the present application filed under Section 151 CPC, after disposal of the writ petition, cannot be considered and is not maintainable. 5. There is absolutely no dispute with regard to the reality that pursuant to, and in terms of, the interim order of this Court dated 27.10.2016, possession of the subject property was delivered by the respondent-Bank to respondents 1 and 2-writ petitioners, who claim to be tenants of the petitioner herein. It is not in dispute that pursuant to the interim order of this Court dated 27.10.2016, the subject property was sold by way of private negotiations in favour of third parties S/Sri Kadili Venkata Satyanarayana and Guttala Srinivas, who paid entire amount and the respondent Bank also closed the account. It is not in dispute that pursuant to the interim order of this Court dated 27.10.2016, the subject property was sold by way of private negotiations in favour of third parties S/Sri Kadili Venkata Satyanarayana and Guttala Srinivas, who paid entire amount and the respondent Bank also closed the account. It is also not in controversy that as per the final order passed by this Court in the writ petition on 30.4.2019, though the respondents 1 and 2-writ petitioners were given opportunity to avail the alternative remedy under Section 17 of the Act, 2002 within a period of two weeks from the date of receipt of copy of the said order, they did not avail the said opportunity also. It is also clear from the final order that this Court ordered status quo to be maintained for a period of four weeks from the date of the said order. Contention of the learned Counsel for respondents 1 and 2-writ petitioners that the present application cannot be maintained under Section 151 CPC, in the considered opinion of this Court, is totally one without merits, having regard to the conduct of the respondents 1 and 2-writ petitioners. Having taken possession of the subject property in terms of the order of this Court and having failed to avail the opportunity afforded by this Court to avail the alternative remedy open under Section 17 of the Act, 2002, now, the respondents 1 and 2-writ petitioners cannot complain about the maintainability of the present petition before this Court. In the definite opinion of this Court, the application now filed before this Court vide IA No. 1 of 2019, is maintainable and warrants an order to be passed on the said application in order to have a check on such conduct of respondents 1 and 2-writ petitioners. Accordingly, the said contention is hereby rejected. 6. Submission of the learned Counsel for respondents 1 and 2-writ petitioners that since the final order does not stipulate any penal consequence in case of non-adherence to the directions given therein, this petition is not maintainable, is also, in the considered opinion of this Court, untenable. As this Court disposed of the writ petition in order to put a quietus to the entire litigation and also thought it fit to give one opportunity to the respondents 1 and 2-writ petitioners, the said contention cannot be sustained. As this Court disposed of the writ petition in order to put a quietus to the entire litigation and also thought it fit to give one opportunity to the respondents 1 and 2-writ petitioners, the said contention cannot be sustained. It is a settled and well established principles of law that endeavour of the Courts should always be in the direction of doing justice in the matters and such power of the Court is inherent and cannot be interdicted. It is also the duty of the Courts to see that the orders are duly implemented. Therefore, the contention contra is rejected. 7. For the aforesaid reasons, IA No. 1 of 2019 is allowed, directing the respondents 1 and 2 herein-writ petitioners to deliver vacant physical possession of the subject property to respondent No. 5-Bank within a period of one month from today, so as to enable respondent No. 5-bank to take further action in accordance with law, failing which it is open for the respondent No. 5 bank to take possession of the subject property by taking assistance of police and by holding panchanama. No orders as to costs.