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2025 DIGILAW 647 (TS)

Srinivasulu Sudula v. Bank of Maharashtra

2025-05-07

J.SREENIVAS RAO, SUREPALLI NANDA

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ORDER : (Surepalli Nanda, J.) Heard Sri K. Ramachandra, learned counsel appearing on behalf of the petitioner and Sri Mirza Safiulla Baig, learned counsel appearing on behalf of the respondents. 2. The petitioner approached the Court seeking prayer as under: “….The Hon'ble Court may be pleased to issue Writ or Order or Direction more particularly one in the nature of Writ of Mandamus, declare the action of the 1st Respondent issued Possession Notice vide AB59/Possession Notice/HL/2024-25 dated 05.03.2025 kept pending the Petitioner's representation dated 28.01.2025 and not given Reply as per the Rule 3A (C) of The Security Interest (Enforcement) Rules, 2002, as illegal, arbitrary, violation of Principles of Natural Justice guaranteed under Articles 14, 21 and 300A of Constitution of India and against the provisions of SARFAESI Act, 2002 and consequently direct the Respondents to consider the Representation dated 01.04.2025 and pass such other order or orders as this Hon'ble Court deems fit and proper in the interest of Justice.” 3. It is the specific case of the petitioner that the petitioner availed loan from the respondent bank. Due to serious health issues the petitioner could not repay the loan and the petitioner’s account was declared NPA on 29.01.2023. The original registered documents along with the all original link documents pertaining to petitioner’s house property bearing flat no.502 in the Balaji pearl, H.No.4-32-775/2/74 in Sy. No. 320 and 321 situated at Kukatpally, Medchal, Malkajgiri District purchased by the petitioner in the year 2015 vide regd Document No.5446 of 2015 dated 29.04.2015 at S.R.O Ranga Reddy had been kept in custody of the 2 nd respondent. The petitioner vide representation dated 28.01.2025, addressed to the 2 nd respondent requested grant of time of 3 to 4 months period for clearing the petitioner’s outstanding dues. But however petitioner received possession notice dated 05.03.2025 from the 1 st respondent. The petitioner vide representation dated 01.04.2025 addressed to the 1 st respondent requested for dropping of possession notice dated 05.03.2025 and for grant of time of three (3) months to clear the outstanding debts. But however the said representation, dated 01.04.2025 had not been considered by the 1 st respondent as on date. Aggrieved by the same petitioner approached the court by filing the present writ petition. DISCUSSION AND CONCLUSION:- DISCUSSION:- 4. But however the said representation, dated 01.04.2025 had not been considered by the 1 st respondent as on date. Aggrieved by the same petitioner approached the court by filing the present writ petition. DISCUSSION AND CONCLUSION:- DISCUSSION:- 4. The learned counsel appearing on behalf of the petitioner submits that the writ petition could be disposed of directing the respondents to consider the petitioner’s representation dated 28.01.2025 addressed to the 2 nd respondent herein and petitioner’s representation, dated 01.04.2025 addressed to the 1 st respondent in accordance to law within a reasonable period on humanitarian grounds. 5. Learned counsel appearing on behalf of the respondent Bank how ever contends that the remedy of the petitioner lies before the Debt Recovery Tribunal and no relief can be granted in the present writ petition. CONCLUSION:- 6. This Court opines that against the possession Notice issued to the petitioner by the 1 st respondent herein under Section 13(4) and 13(12) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, petitioner has a remedy under the Act as per Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to approach the Debt Recovery Tribunal. 7. It is pertinent to refer to the judgment of the Division Bench of Apex Court in its judgment dated 20.04.2021 reported in (2021) 6 SCC 771 in M/ s. Radhakrishnan Industries Vs. State of Himachal Pradesh, which referred to Whirlpool Corporation Vs. Registrar of Trade Marks (reported in (1998) 8 SCC 1 and further the said view had been reiterated by a Full Bench of the Apex Court (3 Judges) in a judgment reported in (2021) SCC Online SC page 801 in Magadh Sugar and Energy Limited Vs. State of Bihar and Others dated 24.09.2021 and in the said judgment it is observed at para No.28 as under : 28. The principles of law which emerge are that: (i) The pow er under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as w ell; (ii) The High Court has the discretion not to entertain a writ petition. The principles of law which emerge are that: (i) The pow er under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as w ell; (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the pow er of the High Court is where an effective alternate remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained w hen an efficacious alternate remedy is provided by law ; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases w here there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. How ever, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” This Court opines that the present case falls under second limb of Clause (iv) and (v) of the Apex Court judgment highlighted above. This Court taking into consideration the observations of the Apex Court (referred to and extracted above) is not inclined to grant the prayer as sought for by the petitioner in the present Writ Petition. 8. This Court taking into consideration the observations of the Apex Court (referred to and extracted above) is not inclined to grant the prayer as sought for by the petitioner in the present Writ Petition. 8. TAKING INTO CONSIDERATION: a) The facts and circumstances of the case, b) The submissions made by both the learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the respondents, c) The petitioner’s representation dated 28.01.2025, addressed to the 1 st respondent. d) The contents of the impugned possession notice, dated 05.03.2025 issued to the petitioner by the 1 st respondent. e) Section 13(4) and 13(12) and Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 f) The observations of the Apex Court in the judgments (referred to and extracted above). i) 2021) 6 SCC 771 ii) (1998) 8 SCC 1 iii) (2021) SCC Online SC page 801 Taking into consideration that the subject property pertains to residential house of the petitioner on humanitarian grounds this Court directs the respondents not to initiate any coercive steps against the petitioner in pursuance to the possession notice vide AB59/possession Notice/HL/2024-25, dated 05.03.2025 issued to the petitioner by the 1 st respondent for a period of three (03) weeks from the date of receipt of copy of the present order to enable the petitioner to pursue the remedies as are available under law against the impugned possession notice, dated 05.03.2025 issued to the petitioner by the 1 st respondent. 9. Accordingly, the Writ Petition is disposed of. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.