Dismissed

Moin Ahmed Shareef, v. State of Bank of Hyderabad

Telangana HC12 Aug 2014WP/18265/2014

Case brief

AI extract

What is this about?

This court dismissed a writ petition filed by a tenant challenging the Debts Recovery Tribunal's order dismissing his Securitisation Application. The court held the petitioner must avail the statutory remedy under the SARFAESI Act as his case did not show violation of natural justice, fundamental rights, or lack of jurisdiction.

What did the court decide?

The Writ Petition is dismissed. There shall be no order as to costs. Miscellaneous Petitions shall stand closed.

Moin Ahmed Shareef, Vs State of Bank of Hyderabad — Banking and Recovery | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.18265 OF 2014

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ORDER:(per Hon’ble Sri Justice K.C.Bhanu)

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This Writ Petition is filed under Article 226 of the Constitution of India to call for the records relating to the order dated 16.05.2014, in Securitisation Application No.257 of 2012 passed by the Debts Recovery Tribunal, Hyderabad (for short, ‘DRT’), and quash the same and consequently restore the Securitisation Application No.257 of 2012 to the file of the DRT by directing the DRT to hear the same.

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2. Securitisation Application was filed challenging the proceedings initiated by the 1^st respondent bank for taking physical possession of the schedule property through the Advocate Commissioner, in pursuance of the order, dated 25.04.2012, in Crl.M.P.No.879 of 2012, passed by the Chief Metropolitan Magistrate, Hyderabad, including the Possession Notice, dated 28.03.2011 issued under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, ‘SARFAESI Act’) and the Demand Notice, dated 29.12.2010 issued under Section 13(2) of the SARFAESI Act as illegal and void.

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3. The petitioner claims to be a tenant in respect of the property, which was mortgaged by the 2^nd respondent in favour of the 1^st respondent bank for obtaining a loan. He came to know about the mortgage in respect of the property, when the Advocate Commissioner issued notice on 25.04.2012 to vacate the

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premises on or before 27.04.2012, in pursuance of the orders passed in Crl.M.P.No.879 of 2012, which was filed by the 1^st respondent bank to appoint an Advocate Commissioner for taking physical possession of the schedule property. Then, he filed the aforementioned Securitisation Application before the DRT and the said Application was dismissed on the ground that so far the 1^st respondent bank has not taken possession of the schedule property and therefore, the Securitisation Application was premature. Challenging the same, the present writ petition is filed.

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4. Learned counsel for the petitioner contended that R.C.C.No.392 of 2011 filed by the 2^nd respondent against the petitioner herein for eviction of the schedule property is pending before the III Additional Rent Controller, City Civil Court, Hyderabad; that in pursuance of un-registered lease deed, dated 20.04.2001, the petitioner is continued to be in possession of the property and therefore, he cannot be evicted except through process of Court; and therefore, he prays to set aside the impugned order.

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5. On the other hand, learned Standing Counsel appearing for the 1^st respondent bank contended that the petitioner is in illegal possession of the property; that these facts have not been stated to the bank at the time of creating mortgage that the premises in question was let out to the petitioner; that the petitioner has got effective alternative remedy and he has to avail the same; and therefore, he prays to dismiss the writ petition.

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6. On the other hand, learned counsel appearing for the 2^nd respondent contended that he did not give the premises in question on lease to the petitioner; that the petitioner is bound to

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vacate the premises; and hence, he prays to vacate the premises and dismiss the petition.

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7. There cannot be any dispute that when the bank initiated the proceedings to recover the amount in pursuance of the mortgage created in respect of the immovable property, the borrower can file Securitisation Application before the DRT as contemplated under Section 17 of the SARFAESI Act. Similarly when order of the DRT passed under Section 17 of the SARFAESI Act is appealable under Section 18 of the SARFAESI Act, any person aggrieved by any order passed by the DRT can prefer an appeal under Section 18 of the SARFAESI Act. Therefore, the petitioner has to avail the statutory remedy, which is effective and efficacious, available to him.

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8. No doubt the statutory alternative remedy is not a bar for invoking the jurisdiction of this Court under Article 226 of the Constitution of India. But, at the same time, the petitioner must show that his case falls under any of the three grounds as contemplated by the Hon’ble Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others [1] viz., violation of principles of natural justice, violation of fundamental rights and the authority, which issued the proceedings lacks jurisdiction. But, the case of the petitioner does not fall under any one of the three grounds as mentioned above.

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9. Therefore, the Writ Petition is dismissed, leaving open the remedies available to the petitioner under law. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.

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JUSTICE K.C. BHANU

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___________ JUSTICE ANIS

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Date:12.08.2014 INL

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[1] (1988) 8 SCC 1

Moin Ahmed Shareef, v. State of Bank of Hyderabad

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Moin Ahmed Shareef, v. State of Bank of Hyderabad

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