Dismissed

Sanka Chandrasekhara Rao v. Andhra Bank

Telangana HC13 Aug 2014WP/23190/2014

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a bank's eviction and sale of secured asset. It held that the statutory remedy under Section 17 of SARFAESI Act was available and the petitioner failed to establish violations of natural justice or lack of jurisdiction.

What did the court decide?

No order as to costs. Writ Petition dismissed. Remedy of appeal under Section 17 of SARFAESI Act left open.

Sanka Chandrasekhara Rao Vs Andhra Bank — Banking and Recovery | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.23190 OF 2014

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

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This Writ Petition is filed seeking to issue a Writ of Mandamus declaring the action of respondent No.2/Bank in trying to evict the petitioner in taking physical possession of the property from him and proceeding to sell the same without proper issuance of notice under Sections 13(2) or 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, “the SARFAESI Act”) and without any opportunity to submit his objections pursuant to the order, dated 11.7.2014, of respondent No.3 at the instance of respondent No.2 as also through respondent No.2’s letter, dated 26.7.2014, in respect of secured asset belonging to the petitioner jointly with his mother - Sanka Bangaramma i.e., part and parcel of house site in T.S.No.170 at Door No.16-24-38, 5^th Ward, 1^st Block of Tenali Town and Mandal, Guntur District to an extent of 223.3 sq.yards in the name of Sanka Bangaramma without following due process of law as illegal, arbitrary and violative of principles of natural justice, and consequently, to set aside the order, dated 11.7.2014, of respondent No.3 and letter, dated 26.7.2014, of respondent No.2.

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2. Case of the petitioner is that his mother – Sanka Bangaramma took loan from respondent No.2/Bank for which, he stood as the coobligant; that the aforementioned secured asset belongs to him jointly along with his mother; that respondent No.2 issued letter, dated 26.7.2014, directing him to vacate and hand over the vacant possession of the property to them pursuant to the order, dated 11.7.2014, of respondent No.3; that no notice was issued under

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Section 13(2) or 13(4) of the SARFAESI Act; that as a permanent Presiding Officer is not posted in the Debts Recovery Tribunal, Visakhapatnam (for short, “the Tribunal”), he filed the present writ petition before this Court.

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3. A statutory effective alternative remedy of filing an appeal under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal is available to the petitioner No doubt, availability of statutory remedy is not a bar for exercising the jurisdiction under Article 226 of the Constitution of India, but the petitioner must show that his case falls under any one of the three grounds viz., 1) violation of principles of natural justice, 2) proceedings were wholly without any jurisdiction and 3) violation of fundamental rights, as enumerated in a decision of the Apex Court reported in WHIRLPOOL CORPORATION

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Vs. REGISTRAR OF TRADE MARKS, MUMBAI^[1] , wherein it was held at para No.15 as under:

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“Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by the Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

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The case of the petitioner does not fall under anyone of the aforementioned three grounds. Therefore, the Writ Petition is liable to be dismissed.

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4. Learned counsel for the petitioner fairly submitted that regular Presiding Officer is posted to the Tribunal.

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5. Recording the said submission, the Writ Petition is dismissed leaving open the remedy of filing an appeal under Section 17 of the SARFAESI Act before the Tribunal. There shall be no order as to costs.

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6. 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 Date: 13.8.2014 AMD

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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.23190 OF 2014

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DATE: 13.8.2014