ORDER : (Per Sri Justice M.S.Ramachandra Rao) This case illustrates how a family dispute between spouses causes collateral damage on others related to them leading to even financial institutions acting arbitrarily and causes hardship to them. 2. The petitioner herein is a practicing Advocate in this High Court. The 5th respondent was employed in Andhra Pragathi Grameena Bank, Visakhapatnam. 3. Petitioner’s wife Prameela Rani and the wife of the 5th respondent by name Padmaja Rani are sisters. The 5th respondent’s wife is employed as Asst.Manager in Indian Overseas Bank. 4. The 1st respondent is the State Bank of India and the 2nd respondent is it’s branch at Masab tank, Hyderabad. The 3rd and 4th respondent is the Asst.General Manager and Authorized Officer, RACPC of the 1st respondent bank and the 7th respondent is the Chief General Manager of the 1st respondent Bank at it’s Local head Office, in Hyderabad. (They will be collectively referred to as ‘The Bank’.) 5. The petitioner is in occupation of Flat No.511, Uday Balaji residency, H.No.1-1-17/A, Jawahar Nagar, Hyderabad. 6. According to the petitioner he intended to purchase an apartment by taking a loan from financial institutions and since Banks are reluctant to grant loans to Advocates, and since he was an Advocate, he persuaded the 5th respondent to apply and obtain a loan of Rs.50 Lakhs from the State Bank of India i.e the Bank to purchase the above property; that the 5th respondent readily agreed to do so; and a loan was granted on 14.2.2016 by the Bank to 5th respondent of Rs.50 lakhs. 7. This is disputed by the 5th respondent, who claims that he himself intended to purchase the said property after 2014; that petitioner helped him to identify the above property and after satisfying himself about the title of the vendor, 5th respondent negotiated with the builder M/s Udaya Heights Pvt.Ltd (for short ‘the builder’), paid him by cheques dt.16.11.2015 and 20.11.2015, Rs.5,00,000/- and Rs.4,00,000/- respectively; and that thereafter loan was sanctioned to him on 14.2.2016 by the Bank. 8. Though the 5th respondent signed all the loan documents with the Bank, it is not in dispute that the petitioner acted as 5th respondent’s agent and attended the registration work in connection with the sale deed which was executed on 5.3.2016 in favor of 5th respondent by the builder of the flat as proxy of the 5th respondent. 8. Though the 5th respondent signed all the loan documents with the Bank, it is not in dispute that the petitioner acted as 5th respondent’s agent and attended the registration work in connection with the sale deed which was executed on 5.3.2016 in favor of 5th respondent by the builder of the flat as proxy of the 5th respondent. According to the petitioner, 5th respondent authorized him to get the registration done. 9. It is undisputed that the loan was released by 2nd respondent by two cheques both dt. 20.3.2016, one for Rs.23,80,000/- and Rs.26,20,000/- in favor of the builder and that the monthly EMI was Rs.43,859/-. The inter-se disputes between 5th respondent and his wife 10. Disputes the arose between the 5th respondent and his wife since December, 2016. 11. Wife of 5th respondent filed OP.No.1260 of 2017 in Family Court, Hyderabad to dissolve their marriage and also a DVC.No.206/2018. She also filed CC No.607 of 2017 before the PDM Court, Srikakulam under Sec.498-A IPC; and also got registered an FIR against her husband FIR No.257/2017 for allegedly labeling her ‘indecently’ under the Information Technology Act. The 5th respondent was arrested on 24-1-2018. Another FIR 105 of 2019 was also registered against him by his wife saying that he forged her signature and got a top-up loan of Rs.14,92,000/- from SBI, Kohinoor Branch, Visakhapatnam. 12. The 5th respondent applied for voluntary retirement and on 30-9-2019 he was allowed by his employer to voluntarily retire from service. 13. Since December, 2016, a rift occurred between the 5th respondent and the petitioner due to the above events. The after effect of the disputes between the 5th respondent and his spouse on the petitioner 14. So on 1-8-2018, the 5th respondent wrote to the Bank that he cannot repay the loan amount, that it should not accept payments from any third party into the Home loan account, and requested the 2nd respondent to auction the property. He wrote another letter on 20-9- 2018 to the Chairman of the Bank requesting that the Bank should sell the above property. 15. On 7.8.2018, the Bank wrote to the 5th respondent that it would initiate proceedings under the SARFAESI Act, 2002 (for short the ‘Act’) as the 5th respondent’s loan account had become NPA in June 2017 itself. 16. He wrote another letter on 20-9- 2018 to the Chairman of the Bank requesting that the Bank should sell the above property. 15. On 7.8.2018, the Bank wrote to the 5th respondent that it would initiate proceedings under the SARFAESI Act, 2002 (for short the ‘Act’) as the 5th respondent’s loan account had become NPA in June 2017 itself. 16. A notice under Sec.13 (2) of the Act was issued by the Bank to the 5th respondent on 16.10.2018 alleging that the loan account was classified as an NPA on 10.10.2018 and asking him to pay Rs.54,66,865/- in 2 months. 17. On 10.11.2018, petitioner sent objections under Sec.13 (3A) of the Act to the Bank stating that he obtained the loan on the name of the 5th respondent as Advocates were not being encouraged by Banks to take loans, that 5th respondent agreed to it, obtained the loan , that petitioner had paid the builder and also the Bank for purchase of the property, but because of marital disputes between 5th respondent and his wife since December, 2016 , the 5th respondent had persuaded the Bank to make the loan as an NPA and petitioner would be put to grave prejudice, if the Bank were to sell the property. He requested that he be permitted to deposit monthly installments regularly. The instant Writ petition 18. The petitioner then filed the instant Writ Petition on 19-12-2018 challenging the action of the Bank in (i) classifying the Home loan account of 5th respondent as a “Non Performing Asset”, (ii) not replying to his objections made to the Notice dt.16.10.2018 issued under Sec.13(2) of the Act, (iii) and to set aside the said notice. 19. On 2-1-2019, a symbolic possession notice under rule 8 (i) of the Security Interest Enforcement Rules, was issued by the 3rd respondent on behalf of the Bank. The interim order dt. 4.2.2019 in IA.No. 1 of 2018 in WP.No.46380 of 2018 20. A Division Bench of this Court presided over by Justice V.Ramasubramanian and Justice Keshav Rao on 4.1.2019 noted that a notice under sec.13(4) of the Act was issued on that day and adjourned the matter to 22-1-2019 and granted status quo till then, but permitted the petitioner to make payment of loan installments. 21. On 22-1-2019, the said interim order was directed to continue and the matter was adjourned by 2 weeks. 22. 21. On 22-1-2019, the said interim order was directed to continue and the matter was adjourned by 2 weeks. 22. Pursuant to the said liberty given to petitioner, he paid Rs.5,10,000/- to the Home loan account of 5th respondent with the Bank till April, 2019. 23. IA.No.2 of 2019 is filed by the Bank/respondents 1-4 and 7 to vacate the said order. 24. IA No.3 of 2019 is filed by the 5th respondent also to vacate the said order. IA No.4 of 2019 25. IA No.4 of 2019 is filed by the wife of the 5th respondent to implead her as a party to the W.P. stating that she is a necessary and proper party to the Writ Petition. 26. She contended that she and her extended family consisting of her sister and her husband, the petitioner substantially contributed to the purchase of the above property and the 5th respondent is falsely claiming that it is his exclusive property and he is trying to deny any right therein to her and to her minor children, aged 8 and 9 years respectively, because of the disputes between them. 27. In view of her plea, we deem it appropriate to allow IA No.4 of 2019 and implead her as respondent no.8 in the Writ Petition. IA No.5 of 2019 28. On 1.4.2019, the Division Bench mentioned above took note of the stand of 5th respondent that he intended to take voluntary retirement and permitted the Bank to sell the subject property. Pursuant thereto, an e-auction sale notice dt.9.4.2019 was issued by the Bank proposing to conduct sale on 15.5.2019. 29. Petitioner then filed IA No.5 of 2019 to stay all further proceedings pursuant to the said notice stating that he had already paid Rs.5,10,000/- to the Bank towards the loan of the 5th respondent and yet the account is maintained as an NPA by it, and the pendency of the W.P. was not mentioned in the e-auction sale notice by the Bank. He contended that under the Rule 8 (5) (d) of the Security Interest (Enforcement0 Rules,2002, the Bank can also sell the property to him under a private treaty, in the facts and circumstances of the case. 30. On 29.4.2019, the same Division Bench directed that if the auction to be held on 15.5.2019 goes on, the sale shall not be confirmed and directed it to be listed on 10.6.2019. 30. On 29.4.2019, the same Division Bench directed that if the auction to be held on 15.5.2019 goes on, the sale shall not be confirmed and directed it to be listed on 10.6.2019. However it appears that the auction did not take place on that day. 31. Petitioner challenged it before the Supreme Court of India in SLP.No.12374/2019 but it was dismissed on 1.7.2019 directing this Court to decide the Writ petition expeditiously. I.A no.6/2019 32. Petitioner filed I.A no.6/2019 to receive certain Bank Statements which according to the petitioner prove that petitioner had made substantial payments to the builder and to the Bank for the loan granted by it to the 5th respondent. None of these documents were disputed by the Bank or the 5th respondent. 33. IA 6/2019 is therefore allowed and the said documents are received on record. IA No.1 of 2020 34. In November, 2019, the Bank filed Crl.M.P.No.104 of 2019 before the Chief Metropolitan Magistrate, Hyderabad invoking Sec.14 of the Act to take possession of the subject property without impleading the petitioner and on 29.11.2019, an order was granted in it’s favor. 35. Petitioner therefore filed IA No.1 of 2020 to stay the operation of the said order. 36. On 28.1.2020, there was interim stay of the order dt.29.11.2019 in Crl.M.P.No. 104 of 2019 granted in IA No.1 of 2020. 37. This completes the narration of the facts in the case. The contentions raised will be considered as under. Consideration by the Court 38. According to the petitioner, Banks are reluctant to grant loans to advocates, and he was an advocate, he persuaded the 5th respondent, whose wife (the 8th respondent) and petitioner’s wife are sisters, to take the loan from the State Bank of India in 5th respondent’s name and buy the subject property; that petitioner is the beneficiary of the loan granted by the Bank to the 5th respondent ; that petitioner financed the purchase of the property and 5th respondent was only a nominal owner under a family arrangement, even though the sale deed for the subject property stands in the name of the 5th respondent. 39. The Bank in it’s counter affidavit at Para 3(f) alleges that petitioner got the loan sanctioned in his name ‘benami’. 40. Whether this plea is correct or not has to be examined first. 41. 39. The Bank in it’s counter affidavit at Para 3(f) alleges that petitioner got the loan sanctioned in his name ‘benami’. 40. Whether this plea is correct or not has to be examined first. 41. In this context one needs to bear in mind the provisions of the Prohibition of Benami Transactions Act, 1988. It was amended by Act 43 of 2016 w.e.f 1.11.2016 and also on but the transfer of title to the 5th respondent occurred on 5.3.2016 and so the amendments made, being substantive in nature, will not have retrospective operation and the unamended Benami Transactions (Prohibition) Act, 1988 would apply. 42. In Mangathai Ammal (Died) through L.Rs. and Ors. vs. Rajeswari and Ors, 2019 (5) ALD 16 (SC) = (09.05.2019 - SC) : MANU/SC/0772/2019, the Supreme Court held that amendments made vide Act 43 of 2016 to the Benami Transactions (Prohibition) Act, 1988 would not operate retrospectively. It declared: “It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3(2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted. It is the case on behalf of the Respondents that therefore in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory presumption that the purchase made in the name of wife or children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. As held by this Court in the case of Binapani Paul v. Pratima Ghosh … 2007 (6) SCC 100 (Supra) the Benami Transaction (Prohibition) Act would not be applicable retrospectively.” (emphasis supplied) 43. Section 2(a) of the said Act defines ‘benami transaction’ as meaning ‘any transaction in which property is transferred to one person for a consideration paid or provided by another person’. 44. In Valliammal v. Subramaniam, (2004) 7 SCC 233 , the Supreme Court set out the parameters to determine what a ‘benami transaction’ is. It explained : “14. …. Section 2(a) of the said Act defines ‘benami transaction’ as meaning ‘any transaction in which property is transferred to one person for a consideration paid or provided by another person’. 44. In Valliammal v. Subramaniam, (2004) 7 SCC 233 , the Supreme Court set out the parameters to determine what a ‘benami transaction’ is. It explained : “14. …. the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction: “(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.” (Jaydayal Poddar v. Bibi Hazra, (1974) 1 SCC 3 , SCC p. 7, para 6) 14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another.” (emphasis supplied) 45. Section 3(1) of the said Act contains the interdict that no person shall enter into any ‘benami transaction’. 46. Section 4 of the said Act saves certain transactions from the above prohibition and it states: “4. Prohibition of the right to recover property held benami.— (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. Prohibition of the right to recover property held benami.— (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply— (a) where the person in whose name the property is held is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” A plain reading of the above will show that no suit, claim or action to enforce a right in respect of any property held benami shall lie against the person in whose name the property is held or against any other person at the instance of a person claiming to be the real owner of such property. 47. The circumstances in which the purchase in question was made in the name of the 5th respondent assumes great importance while determining whether the 5th respondent in whose name the property was acquired stood in a fiduciary capacity towards the petitioner and 8th respondent. 48. In Marcel Martins v. M. Peter, (2012) 5 SCC 342 , a residential house, which was originally owned by a Municipal Corporation of Bangalore was leased to one S. The appellant was her only son. The respondents were her daughters. In 1978 the Corporation decided to sell it to it’s occupant. But before the sale of the house could take place in favor of S, she died leaving behind her husband C, the appellant and the respondents. The respondents were her daughters. In 1978 the Corporation decided to sell it to it’s occupant. But before the sale of the house could take place in favor of S, she died leaving behind her husband C, the appellant and the respondents. The respondents contended that the Corporation desired that the transfer of tenancy rights should be made in the name of one of the legal representatives of S, the respondents and C consented to transfer in favor of the appellant; and that in order to satisfy the Corporation’s demand of sale consideration of Rs.48,636/-, according to the respondents, each of the 3 children contributed Rs.5,000/- while C contributed Rs.35,636/- and a sale deed was executed in favor of the appellant in 1987. But appellant claimed that it belonged to him exclusively and that he alone paid entire sale consideration. The respondents/plaintiffs filed a suit to declare that they are co-owners of the house to the extent of their contribution and for an injunction restraining the appellant/defendant from interfering with their possession of the same. The trial court dismissed the suit, but the High Court decreed it in favor of the respondents. The Supreme Court dismissed the appeal filed by the appellant. It held that Sec. 4 (3) (b) of the Benami Transactions (Prohibition) Act,1988 specifically saves a transaction where the property is held by the person who stands in a fiduciary capacity for the benefit of the person towards whom he stands in such a capacity. It held: “37. … It is manifest that while the expression “fiduciary capacity” may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other. 38. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other. 38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case…”( emphasis supplied) It then took note of the fact that S was a tenant, on her death, the tenancy rights would devolve on all the legal heirs, i.e the husband of S, the appellant and the respondent daughters; that because of the Corporation’s desire the sale deed was executed in name of appellant only; the other legal heirs had not abandoned their rights as tenants and also to the benefits that would flow from the Corporation’s decision to sell the property to the occupants; that this is fortified by the fact that all the legal heirs contributed towards the sale consideration paid for acquisition of the property in favor of the appellant. It further held that the parties were closely related to each other which lends considerable support to the case of the plaintiffs that the appellant-defendant held tenancy rights and the ostensible title to the suit property in a fiduciary capacity vis-à-vis his siblings, who had by reasons of their contribution and contribution made by their father continued to evince interest in the property and it’s ownership. It held that reposing confidence and faith in the appellant was in the facts and circumstances of the case not unusual nor unnatural especially when the possession over the suit property continued to be enjoyed by the plaintiffs who would in law and on a parity of reasoning be deemed to be holding the title to the property for the benefit of the plaintiffs. It concluded that the suit filed by the plaintiffs-respondents was not barred and was saved by Sec. 4 (3) (b). 49. Therefore how the sale transaction of the subject property was financed in the instant case assumes considerable importance. 50. It concluded that the suit filed by the plaintiffs-respondents was not barred and was saved by Sec. 4 (3) (b). 49. Therefore how the sale transaction of the subject property was financed in the instant case assumes considerable importance. 50. The sale consideration mentioned in the sale deed executed by the builder in favor of the 5th respondent is Rs.35,20,000/- . Admittedly this amount was arranged by 5th respondent by paying the builder Rs.26,20,000/- out of the Home loan granted by the Bank, and the balance of Rs.9,00,000/- was paid to the vendor/builder vide chq.059766 dt.16.11.2015 for Rs.5,00,000/- and another chq.no.059767 dt.20-11-2015 for Rs.4,00,000/-. 51. The Bank statements filed by the petitioner along with IA No.6 of 2019 indicates that Rs.10,00,000/- was transferred by Prameela Rani, the wife of the petitioner, through a bank transfer from her Indian Overseas bank account at Chikkadpally, Hyderabad to her sister Padmaja Rani ( respondent no.8), wife of 5th respondent on 10-11-2015. 52. On 16-11-2015, respondent no.8, in turn transferred Rs.9,00,000/- out of it to SB a/c 31186759226 of 5th respondent with the SBI; the 5th respondent then paid the builder Rs.5,00,000/- on 18-11-2015 by chq.no.59766 and Rs.4,00,000/- on 23-11-2015 by chq.no.59767. 53. So the sum of Rs.5,00,000/- and Rs.4,00,000 mentioned in the sale deed was not actually paid by the 5th respondent from out of his own monies and he utilized the amounts paid by petitioner’s wife. Other circumstances (a) Plea of 5th respondent that he leased the subject property to his brother in law is a false plea and he himself admitted that petitioner is in possession of the subject property 54. The 5th respondent contends that he had initially leased the above property to Batchala Murali Krishna, his brother in law, under an unregistered lease deed to accommodate his parents on 15.6.2016 from 1.6.2016 to 31.1.2017, but the latter did not occupy it; and at the request of petitioner and his wife, he allowed them to occupy it as tenants on a rent of Rs.25,000/- orally. No date is mentioned by the 5th respondent when this event occurred but it can be presumed to be in February 2017, according to 5th respondent. Thus the possession of the petitioner of the subject property since then is also admitted by 5th respondent, though as a tenant. 55. No date is mentioned by the 5th respondent when this event occurred but it can be presumed to be in February 2017, according to 5th respondent. Thus the possession of the petitioner of the subject property since then is also admitted by 5th respondent, though as a tenant. 55. Petitioner however asserts that there was an internal arrangement in the family and the 5th respondent was only a nominal owner. 56. This Bench asked the 5th respondent to file his Income Tax returns for assessment years 2017-18 and 2018-19 to check whether the plea of 5th respondent that Batchala Murali Krishna was in occupation as tenant is substantiated by showing the alleged rental income of Rs.20,000/- p.m. Through a memo dt.11-12-2019, these returns were filed by counsel for 5th respondent. 57. A perusal of these Income Tax returns of the 5th respondent shows that for the assessment year 2017-18 (Financial year 2016-17), no rental income was offered to tax by him. He mentioned that it was let out but claimed a loss of Rs.3,44,435/-. 58. This shows that his plea of award of tenancy of the subject property to Batchala Murali Krishna from 15-6-2016 to 31-7-2017 is a false plea, though an unregistered lease deed is filed to support the said contention,. 59. It is thus established by admission of 5th respondent that petitioner is in occupation of the subject property though he claimed that he was a tenant on a rent of Rs.25,000/-. (b) Other contributions made by petitioner/his wife for property purchase/loan transaction of 5th respondent PAYMENTS TO BUILDER 60. We have already discussed that Rs.9,00,000/- paid for purchase of the subject property to the builder was not with the funds of the 5th respondent and he had utilized the money transferred by petitioner’s wife to 8th respondent, which the 8th respondent then transferred to him. 61. On 4-3-2016, the wife of the petitioner, through RTGS, transferred from her SB a/c in Indian Overseas Bank, Rs.2,11,250/- to the builder. Another payment of Rs.40,000/- was also made by the petitioner to the builder by Chq.645149 on 25-1-2017. The Bank statements filed by petitioner along with IA No.6 of 2019 corroborate this fact. 62. Along with the Writ Petition, petitioner filed photocopy of receipt dt.23-1-2017 for Rs.8,00,000/- (by cheque) issued by the builder in the name of the 5th respondent. Another payment of Rs.40,000/- was also made by the petitioner to the builder by Chq.645149 on 25-1-2017. The Bank statements filed by petitioner along with IA No.6 of 2019 corroborate this fact. 62. Along with the Writ Petition, petitioner filed photocopy of receipt dt.23-1-2017 for Rs.8,00,000/- (by cheque) issued by the builder in the name of the 5th respondent. Even for this payment, the said amount was paid by petitioner vide Chq.645147 dt.23-1-2017 drawn on the SB a/c of the petitioner and his wife in Indian Overseas Bank, Chikkadpally, though the builder gave receipt in the name of the 5th respondent. This is clear from the Bank Statement for the joint account of petitioner and his wife relating to their SB a/c 067801000029754 in Indian Overseas Bank, Chikkadpally filed with IA 6 of 2019 by petitioner. 63. Two other payments of Rs.40,000/- on 25-1-2017 and Rs.1,25,000/- on 23-2-2017 were also made from the same account to the builder by petitioner and his wife and this is borne out by the Bank records. 64. None of these payments are disputed by 5th respondent. PAYMENTS TO THE BANK 65. No doubt the 5th respondent has filed a Bank statement of the Home loan account showing that he made EMI payments from 9.4.2016 to 30.6.2017. We shall now verify whether he paid these amounts out of his own funds or not. 66. But petitioner contends that the amounts were paid by the 5th respondent to the bank towards the loan from amounts supplied by petitioner and his wife. 67. Firstly, even the above loan account statement shows that petitioner deposited Rs.40,000 in the loan a/c of the 5th respondent on 24.7.2017. 68. A sum of Rs.50,000/-, from out of the sum of Rs.10,00,000/- transferred to 8th respondent by wife of the petitioner on 10.11.2015, was transferred by 8th respondent to 5th respondent by NEFT on 20-11-2015 and he credited it to the loan account with the Bank. 69. According to the petitioner the EMI payment commenced on 30-3-2016; for easy payment of loan installments, the SBI had issued Green Card with No.0060022555176 called a Green Remit Card, and through this card, petitioner regularly remitted EMI to SB a/c of 5th respondent No.31186759226 with SBI, Visakhapatnam, and the same was again transferred to the loan a/c no.00000035570955008. 70. 69. According to the petitioner the EMI payment commenced on 30-3-2016; for easy payment of loan installments, the SBI had issued Green Card with No.0060022555176 called a Green Remit Card, and through this card, petitioner regularly remitted EMI to SB a/c of 5th respondent No.31186759226 with SBI, Visakhapatnam, and the same was again transferred to the loan a/c no.00000035570955008. 70. He relies on the following table contained in the affidavit filed by him in IA.No.6 of 2019 showing how the 5th respondent was financed by petitioner and his wife to make these payments : DATE PAYMENT MODE AMOUNT DESCRPITON 2016 Cash paid to I. Shanti Srujan (5th respondent) 1,00,000 As per I. Shanti Srujan’s request paid Rs.1,00,000 cash 26.08.2016 Cheque – 142177 – S.B.I. 2,00,000 Transferred to I.Shanti Srujan’s account which was later transferred to the builder on the same date 30.08.2016 Cheque – 142179 – SBI 2,00,000 Transferred to I. Shanti Srujan’s account which was later transferred to the builder on the said date 30.08.2016 Transfer – SB – IOB 86,000 07.02.2017 Cheque – 682436 – SBI 50,000 Paid to I. Shanti Srujan’s SB account 23.02.2017 Cheque – IOB – Joint account of G. Tuhin Kumar and his wife Prameela Rani– 645145 1,25,000 Paid directly to the builder 03.03.2017 Cheque – 682442 – SBI 50,000 Paid to I. Shanti Srujan’s SB account 04.04.2017 Cheque – 682449 – SBI 25,000 Paid to I. Shanti Srujan’s SB account 03.05.2017 Cheque – 682451 – SBI 50,000 Paid to I. Shanti Srujan’s SB account 03.06.2017 Cheque – 682457 – SBI 50,000 Paid to I. Shanti Srujan’s SB account 04.07.2017 Direct through Green Card – issued by SBI 50,000 Directly paid to home loan account 24.07.2017 Direct through Green Card– issued by SBI 40,000 Directly paid to home loan account 12.09.2018 Cash – SBI – High Court Branch 30,000 Directly paid to home loan account 18.09.2018 Cash – SBI High Court Branch 30,000 Directly paid to home loan account 04.01.2019 Cheque – 810140 – SBI Account of G. Tuhin Kumar – High Court Branch 3,10,000 Directly paid to home loan account 05.01.2019 Joint account of G. Tuhin Kumar and Prameela Rani–645145 2,00,000 Directly paid to home loan account 19.03.2019 Cash Deposit 45,000/- Directly paid to home loan account 20.05.2019 NEFT/RTGS – IOB account – Joint Account of G. Tuhin Kumar and Prameela Rani 1,00,000 Directly paid to home loan account 05.07.2019 NEFT/RTGS – IOB account – Joint Account of G. Tuhin Kumar and Prameela Rani 50,000/- Directly paid to home loan account 05.08.2019 NEFT/RTGS – IOB account – Joint Account of G. Tuhin Kumar and Prameela Rani 50,000/- Directly paid to home loan account 71. The Bank statements filed by the petitioner of his SB a/c and that of his wife and 8th respondent along with IA No.6 of 2019 corroborate each of these payments except one payment in cash of Rs.1,00,000/to the 5th respondent in 2016 (no date is mentioned). 72. Petitioner has filed along with the Writ petition, photocopies of bank challans evidencing payment of Rs.50,028/on 3-3-2017, 2 payments of Rs.25,000/- each on 4-4-2017 and Rs.30,000/- on 8-10-2018. 73. Petitioner also claims that EMI’s dt.24-7-2017, 12-9-2018,18-9- 2018 and 18-10-2018 were directly paid by him into the Home loan account of the 5th respondent with the Bank. 74. Petitioner also contended that Rs.2,50,000/- for registration of sale deed was paid by him, that he paid Rs.2,25,000/- to Godrej Intero modular kitchen and spent Rs.15,00,000/- for other interior works. 75. For 2018-19 and 2019-20 assessment years (Financial years 2017-18 and 2018-19), 5th respondent showed Rs.3,00,000/- rental income for the subject property, as if such rent was paid by petitioner, but did not show any of the amounts received by him directly from petitioner or his wife or through the 8th respondent in his SB a/c or loan a/c or paid to the builder by petitioner or his wife, even as a loan in his Income Tax returns. 76. It is obvious that these payments were made by petitioner or his wife to 5th respondent’s SB a/c or loan account with the Bank without any intention to do so gratuitously. Almost all of the above payments have been made through RTGS/NEFT or transferred through Cheques, and so they cannot be denied by 5th respondent. 77. Though counsel for the 5th respondent feebly protested about this material, the evidence adduced by petitioner is overwhelming and we are convinced that the 5th respondent’s plea that he took the loan to purchase the subject property for his benefit and that he made payments to the builder or the Bank from his own funds is a false plea solely intended to take revenge on the petitioner and 8th respondent on account of his marital dispute with her by taking advantage of the fact that the sale deed of the subject property stands in his name though he did not pay any amount from his pocket for it’s purchase as explained above. 78. 78. We are of the view that the circumstances i.e., that a very large amount of money for the purchase of the subject property was supplied by the petitioner and his wife, the close relationship between the petitioner, petitioner’s wife, her sister (the 8th respondent) and the 5th respondent whom she married, created a position of confidence and trust on the first three persons and of good faith in the 5th respondent; and the ostensible title of the 5th respondent is being held by him in a fiduciary capacity for the benefit of petitioner and his wife. Also the possession of the property is with the petitioner admittedly. Admittedly the petitioner attended the registration of the sale of the subject property as a proxy for the 5th respondent. 79. Therefore the instant case clearly, as in the case of Marcel Martins (3 supra), falls within Sec.4 (3) (b) of the Benami Transactions (Prohibitions) Act,1988 and is not hit by Sec.3 thereof. 80. Moreover it is settled law that Section 54 of the Transfer of Property Act does not lay down a law as to whether in all situations an apparent state of affairs as contained in a deed of sale would be treated to be the real state of affairs. It does not bar a benami transaction. There is no embargo in getting a property registered in the name of one person; although the real beneficiary thereof would be another. (see Jai Narain Parasrampuria v. Pushpa Devi Saraf, (2006) 7 SCC 756 , at page 774 para 22). 81. We therefore hold that though the regd. sale deed dt.5.3.2016 stands in the name of the 5th respondent, he has no title to it and the actual owner is the petitioner and his wife. Other pleas of the respondent Nos.1 to 4 and 7: 82. The Bank in it’s vacate stay application IA 2 of 2019 contended firstly that Writ Petition filed by the petitioner is not maintainable as it had not violated any constitutional or statutory right of the petitioner. We do not agree with this contention because the petitioner, having financed the sale, and having been declared by us as one of the real owners of the subject property, can certainly approach this Court under Art.226 of the Constitution of India, when he is sought to be deprived of the same by invoking provisions of the SARFAESI Act, 2002. We do not agree with this contention because the petitioner, having financed the sale, and having been declared by us as one of the real owners of the subject property, can certainly approach this Court under Art.226 of the Constitution of India, when he is sought to be deprived of the same by invoking provisions of the SARFAESI Act, 2002. 83. Next it is urged that petitioner is neither a borrower nor a guarantor nor mortgagor to the home loan availed by 5th respondent and that this is a speculative litigation. It is alleged that petitioner’s claim over the property does not have any contractual or legal basis. The legal basis of petitioner’s claim has already been set out above. If the 5th respondent is a benamidar for the petitioner at the relevant point of time, and the transaction is not hit by Sec. 3 of the Benami Transactions (Prohibition) Act,1988 and is saved by Sec. 4 (3) (b) of the said Act, then the petitioner would fall in the category of both borrower and mortgagor. 84. Next it is urged that only in a civil suit the claim of the petitioner can be decided. This contention is without any merit because the Supreme Court in ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others, (2004)3 SCC 553 has held that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining a petition under Article 226 of the Constitution of India is not always bound to relegate the parties to a suit; and that in an appropriate case, Writ Court has jurisdiction to entertain a Writ Petition involving disputed questions of fact; and there is no absolute bar for entertaining a Writ Petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. It held that merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a Civil Suit against a Public Body. This decision was reiterated recently in Popatrao Vyankatrao Patil Vs. State of Maharshtra and others, Civil Appeal No.1600 of 2020 decided on 14.02.2020 by a Three Judge Bench headed by Chief Justice of India, Justice B.R.Gavai and Justice Suryakant. This decision was reiterated recently in Popatrao Vyankatrao Patil Vs. State of Maharshtra and others, Civil Appeal No.1600 of 2020 decided on 14.02.2020 by a Three Judge Bench headed by Chief Justice of India, Justice B.R.Gavai and Justice Suryakant. The Supreme Court held therein that when a petition involves disputed questions of fact and law, the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India; however it is only a rule of self-restraint and not a hard and fast rule; even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. It observed that such power is to be exercised in exceptional circumstances where the High Court finds that the action of the State or its instrumentality is arbitrary and unreasonable and as such violative of Article 14 of the Constitution of India. It applied the decision in ABL International (5 supra). We are of the opinion that only with a view to drive the petitioner to a dilatory, lengthy and pensive process, this plea is raised in the case by the Bank; and since the Bank statements substantiate petitioner’s case, there is not much dispute about the facts, and there is no necessity to drive the petitioner to a civil suit. 85. It is next contended that petitioner cannot invoke the jurisdiction of this Court to dispute the right and title of the 5th respondent which is a solely private dispute. It is also stated that the dispute raised in the Writ Petition is totally unconnected with the Bank. The dispute in the Writ Petition is about the action of the respondents 1-4 and 7 in initiating proceedings under the SARFAESI Act,2002 against the property of which the petitioner and his wife are in occupation as beneficiaries of the transaction between the petitioner and 5th respondent, in which the latter stood in a fiduciary capacity. The Writ Petition is not filed to decide the title dispute between them, though incidentally, the said aspect came to be decided because it is intrinsically connected with the main relief sought in the Writ Petition. 86. The Writ Petition is not filed to decide the title dispute between them, though incidentally, the said aspect came to be decided because it is intrinsically connected with the main relief sought in the Writ Petition. 86. It is alleged by the Bank that petitioner indulged in an illegal and wrong method to secure sanction of a home loan and that he got the loan sanctioned in the name of his ‘benami’ as he was not other wise eligible for a loan. The Bank has not stated why the petitioner is ineligible for the Home loan in the first place. It is an open secret that Banks are reluctant to grant loans to Advocates/lawyers and there is an unofficial policy adopted by them on the said lines. When the petitioner felt that he was unjustly being denied a loan by the Bank, and the 5th respondent offered to help him, and the petitioner financed the deal and also paid substantial amounts to the builder and the Bank, the Bank cannot take this stand. The Bank itself admitted that Rs.40,000/- was paid by the petitioner into the laon account of the 5th respondent and it is also not in dispute that after the interim order was granted in the WP to petitioner on 4.1.2019 in IA No.1 of 2019, he paid about Rs.5,10,000/- to it till April, 2019 and is continuing to pay EMIs. 87. It contended that when the 5th respondent expressed a wish that he cannot pay the loan installments, it’s actions in talking steps under the SARFAESI Act, 2002 cannot be found fault with. In our considered opinion, it was necessary for the Bank to take note of petitioner’s objections dt.10.11.2018 and his offer to pay the installments and affect a private sale under rule 8 (5) (d) to him, by taking note of the facts narrated by him therein. 88. Lastly it is contended that petitioner should have availed the remedy under Sec.17 of the SARFAESI Act, 2002 if he was aggrieved by the actions of the Bank. The existence of an alternative remedy is not an absolute bar to entertaining of a Writ Petition by the High Court as held in a plethora of cases. 88. Lastly it is contended that petitioner should have availed the remedy under Sec.17 of the SARFAESI Act, 2002 if he was aggrieved by the actions of the Bank. The existence of an alternative remedy is not an absolute bar to entertaining of a Writ Petition by the High Court as held in a plethora of cases. When the Bank chose to ignore the petitioner’s objections dt.10.11.2018 and proceeded under the Act to declare the loan as an NPA, to sell the subject property, and also sought to dispossess him after filing the Writ Petition, by securing an order from the Chief Metropolitan Magistrate invoking Sec 14 of the Act without impleading him as a party before the said Magistrate, it cannot harp on the plea of alternative remedy. It’s actions are arbitrary, illegal and violative of Art.14 and 300A of the Constitution of India. 89. Anyway if the loan account is being serviced regularly from January, 2019 by the petitioner and the petitioner undertakes to clear the loan granted to 5th respondent , as submitted across the Bar by his counsel, the Bank would suffer no prejudice, if it did not sell the subject property in a public auction. Other pleas of 5th respondent : 90. It is the contention of the 5th respondent that he gave a hand loan of Rs.6 lakhs in 2013 to the petitioner subject to re-payment of principle with interest at 12% p.a. in three years and that petitioner repaid it in several installments from March, 2016 to July, 2017. But, no document evidencing the said loan or its acknowledgment by the petitioner is filed by 5th respondent to substantiate the said plea. Therefore, the said plea is disbelieved. 91. He also contended that on 16.11.2015 he got Rs.9 lakhs transferred from 8th respondent’s account to his account out of savings amount which he kept with her. We have already pointed out that the petitioner’s wife transferred Rs.10 lakhs from her savings bank account in Indian Overseas Bank, Chikkadpally to the savings bank account of 8th respondent in Indian Overseas Bank, Peda Waltair on 10.11.2015 and that out of this amount, the 8th respondent had transferred Rs.9 lakhs to 5th respondent. We have already pointed out that the petitioner’s wife transferred Rs.10 lakhs from her savings bank account in Indian Overseas Bank, Chikkadpally to the savings bank account of 8th respondent in Indian Overseas Bank, Peda Waltair on 10.11.2015 and that out of this amount, the 8th respondent had transferred Rs.9 lakhs to 5th respondent. The Bank account statement of the 8th respondent filed by petitioner does not show any amount in excess of Rs.10,000/- prior to 10.11.2015 and the plea of the 5th respondent that he had kept Rs.9 lakhs with her and that he got the said amount again retransferred to himself, is a false plea. 92. The 5th respondent accuses the petitioner of having a criminal intention of cheating to grab the subject flat, but the evidence placed on record in fact indicates that the 5th respondent wants to grab the flat taking advantage of the documentation in his favour and the payments received from the petitioner and his wife. It is the 5th respondent who, according to us, wants to cheat the petitioner and cause harm to the petitioner because of enmity with the 8th respondent. 93. Though it is alleged that petitioner used his cordial relationship with police and media and got the 5th respondent arrested, there is no material placed on record to substantiate his plea. 94. According to the 5th respondent, the petitioner colluded with the 8th respondent and got his children admitted in a school without his consent and against his wish and is also not providing access to the 5th respondent to his children. The 5th respondent can approach the Family Court and seek appropriate relief against the 8th respondent in regard to visitation rights for his children and the said issue cannot be gone into in this Writ Petition. There is nothing before us to show that the petitioner has acted in collusion with the 8th respondent. His plea that he has a life threat from the petitioner is also not substantiated by him. 95. The 5th respondent admits in para no.12 that he authorized the petitioner to represent him at the time of registration of the subject flat by the builder because the petitioner happened to be a close and thick relative of his. His plea that he has a life threat from the petitioner is also not substantiated by him. 95. The 5th respondent admits in para no.12 that he authorized the petitioner to represent him at the time of registration of the subject flat by the builder because the petitioner happened to be a close and thick relative of his. This indicates that at the time when the loan transaction and the sale transaction took place, the relationship between the parties was cordial and close and makes it probable that the 5th respondent, at the request of the petitioner, acted to obtain the loan from the Bank for purchase of the subject property by creating confidence and trust in the petitioner. 96. In para no.13, the 5th respondent alleges that he gave a hand loan of Rs.12 lakhs to one M.V. Ramana Rao, at Hyderabad on 01.03.2015, that petitioner was requested by 5th respondent to collect it from the said person and pay it to the builder because of good relations between the petitioner and 5th respondent at that point of time, but no such promissory note has been filed before this Court. Even otherwise, the capacity of the 5th respondent to give hand loans of Rs.12 lakhs to the said person and Rs.6 lakhs to the petitioner is doubtful considering that he was only an employee in a Bank from which he also resigned in 2019. 97. In this regard the silence of the 5th respondent, by not even sending a reply to the legal notice sent on 04.09.2017 till date is very significant. 98. When the petitioner in the reply-affidavit alleged that there is no affixture of notice dt.02.01.2019 under Section 13(4) of the Act on the subject property as mandated by Rule 8(1) of the Security Interest Enforcement Rules, 2002, the Bank did not produced any material to prove such affixture on the outer door or at conspicuous place of the property. This vitiates the action taken by the Bank under the Act. 99. Under Rule 8(5), the authorized officer of the Bank, before affecting sale of the subject property has to obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price and can then sell it even by private treaty. This can be done even without the consent of the borrower. 100. 99. Under Rule 8(5), the authorized officer of the Bank, before affecting sale of the subject property has to obtain valuation of the property from an approved valuer and in consultation with the secured creditor, fix the reserve price and can then sell it even by private treaty. This can be done even without the consent of the borrower. 100. When the 5th respondent himself voluntarily represented to the Bank to sell the property indicating that he has no more interest therein, the Bank can accept the offer of the petitioner and transfer by private treaty, the subject property to the petitioner by invoking Rule 8(5)(d) subject to the petitioner clearing the loan in instalments by execution of a fresh mortgage in its favour. Conclusion: 101. Accordingly, the Writ Petition is disposed of declaring that the 5th respondent was only the ostensible owner of the subject property and the real owner was the petitioner who financed the purchase of the subject property; and respondent nos.1 to 4 and 7 are directed to transfer the subject property to the petitioner by private treaty invoking Rule 8(5)(d) of the Security Interest Enforcement Rules, 2002 subject to the petitioner mortgaging the said property to the Bank to repay the balance payable to it and continuing to pay the installments fixed by it without fail. 102. Accordingly, Interlocutory Application Nos.2 and 3 of 2019 are dismissed, and Interlocutory Application Nos.4, 5, 6 of 2019 and 1 of 2020 are allowed. No order as to costs. 103. As a sequel, miscellaneous petitions pending if any in this Writ Petition shall stand closed.