Mohammad Ali Vs The Gandhi Cooperative Urban Bank Limited

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the 1st respondent in filing a Criminal Miscellaneous Petition Vide Crl.M.P.No.2917 of 2024 IN C.F.No.5286 of 2024 before Chief Metropolitan Magistrate At Vijayawada, for appointment of Advocate Commissioner to take physical possession of the secured asset against Loan No.GLT551 without considering the final order passed by the Andhra Pradesh Co-Operative Tribunal Vijayawada in O.A.No.07/2023 dated10.09.2024 directing the Respondent bank to approach Debt Recovery Tribunal for the recovery as bad illegal, arbitrary, unjust, improper and in violation of Article 19, 20, 21 and 300-A of Constitution of India and consequently direct the respondents not to take any coercive steps in contravention of law.

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IA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in pursuance to the Crl.M.P.No.2917 of 2024 in C.F.No.5286/2024 dated 12.09.2024 in respect to take possession of the said secured asset in Loan No.GT-511and direct the Advocate- commissioner to handover the secured assets to the Applicant pending disposal of the Writ Petition.

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Counsel for the Petitioner(S):

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1.K A NARASIMHAM

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Counsel for the Respondent(S):

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1.KUNUKU RAJA SEKHAR

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The Court made the following:

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HON’BLE SRI JUSTICE NYAPATHY VIJAY

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WRIT PETITION No.10100 of 2025

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ORDER:

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The present Writ Petition is filed to declare the action of Respondent No.1-Bank in filing Crl.M.P.No.2917 of 2024 in CF.No.5286 of 2024 before the Chief Metropolitan Magistrate, Vijayawada for appointing Advocate-Commissioner to take physical possession of secured asset against Loan No.GLT-551, as illegal and arbitrary.

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Petitioner Nos.1 and 2 herein being principal borrower and co-obligant respectively had availed loan of Rs.25,00,000/- from Respondent No.1-Bank. In turn, the Petitioners submitted title deeds to the property and an equitable mortgage deed was created. As the Petitioners had defaulted in payment of loan, Respondent No.1Bank had approached the Deputy Registrar/Arbitrator Co-operative Societies, Vijayawada under Section 61 of the Andhra Pradesh Cooperative Societies Act, 1964 (for short “the A.P.C.S. Act, 1964” ) and an Award under Section 62(4) of the A.P.C.S. Act, 1964 was passed on 29.01.2018 for a sum of Rs.35,10,184/- with interest at 16% p.a., compounded monthly from 29.01.2018 till realization. As the Petitioners did not pay said the amount, Respondent No.1-Bank

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filed E.P.No.51/DR/2018-19 claiming an amount of Rs.36,18,294/before the Deputy Registrar of Co-operative Societies, Vijayawada. Questioning the same, an appeal was filed before the Andhra Pradesh Co-operative Tribunal, Vijayawada in O.A.No.07/2023.

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Relying on the Judgment of the Supreme Court in Pandurang Ganapathi Chaugule v. Viswswararao Patel Murgh Sahakari Bank¹ , the Co-operative Tribunal set-aside the Award passed by the Deputy Registrar Co-operative Societies in O.A.No.07 of 2023 on the ground that the Co-operative Banks had to approach the Debt Recovery Tribunals for recovery of loans over and above Rs.20,00,000/- as in this case.

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During pendency of the O.A, Respondent No.1-Bank initiated proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act, 2002” ) and had issued notices under Section 13(2) and 13(4) of the SARFAESI Act, 2002 dated 15.11.2023 and 19.02.2024 respectively. In furtherance, Respondent No.1-Bank filed Crl.M.P.No.2917 of 2024 in CF.No.5286 of 2024 before the Chief Metropolitan Magistrate, Vijayawada under Section 14 of the SARFAESI Act, 2002 for

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1 (2020) 9 SCC 215

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appointing Advocate-Commissioner to take physical possession of the property. Questioning the same the present Writ Petition is filed.

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The principal contention of the learned counsel for the Petitioners Sri K.A. Narasimham is that initiation of proceedings under the SARFAESI Act, 2002 should be after dismissal of O.A.No.07 of 2023 and not during pendency of the proceedings before the A.P. Co-operative Tribunal.

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The learned Standing Counsel appearing for Respondent No.1-Bank Sri Kunuku Raja Sekhar would contend that the exercise of statutory power in terms of the Judgment of the Supreme Court in

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Pandurang Ganapathi Chaugule v. Viswswararao Patel Murgh

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Sahakari Bank (supra) as observed by the A.P. Co-operative Tribunal in O.A.No.07 of 2023 cannot be found fault with.

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Heard the respective counsels.

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A reading of the prayer in the Writ Petition would show that the present Writ Petition was filed on mere filing of Crl.M.P.No.2917 of 2024 in CF.No.5286 of 2024 before the Chief Metropolitan Magistrate, Vijayawada by Respondent No.1-Bank and the same would not give any cause action to maintain the Writ

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Petition. More so, the notices under Sections 13(2) and 13(4) of the SARFAESI Act, 2002 are not under challenge.

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Be that as it may, the Petitioners would have to approach the jurisdictional Debt Recovery Tribunal questioning the Demand Notice under Section 17 of the SARFAESI Act rather than filing the present Writ Petition and this Court does not find reason to interfere with the proceedings initiated by Respondent No.1-Bank at this stage.

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Therefore, the Writ Petition is disposed of, leaving it open to the Petitioners to approach the jurisdictional Debt Recovery Tribunal. In the interregnum for a period of eight (08) weeks from today, status quo shall be maintained by both the parties.

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