Disposed

Spider Photo Studio and 5 Others v. Prthvi Asset reconstruction And Securitisation company Limited (Paras) and Another

Telangana HC4 Aug 2021WP/14637/2021

Case brief

AI extract

What is this about?

This writ petition challenged the bank's attempt to take physical possession of property via an Advocate Commissioner without notice during SARFAESI proceedings. The bench held that judicial review targets the decision-making process, not the decision itself for perversity or illegality, observing the appeal is pending adjudication.

What did the court decide?

Disposal of the writ petition without costs; miscellaneous petitions closed; no order as to costs.

Spider Photo Studio and 5 Others Vs Prthvi Asset… — Consumer Protection | Telangana HC (2021)

¶1

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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(Special Original J urisdiction)

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WEDNESDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRIJUSTICE A. RAJASHEKER REDDY AND

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THE HONOURABLE DR. JUSTICE SHAMEEM AKTHER

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WRIT PETITION NO: 14637 OF 2021

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Between:

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Spider Photo Studio, Represented by its^proprietor Vikram, S/oJ',larayana Rao, Aged about 45 years, Occ. Business, At D.No. 22-11-81 ,B2,f unuguntla vari street, lalapet, Krishna nagar-ll, Guntur.

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Laxmi Venkateshwara Offset Printers, Represented by its^proprietor, Ch Narayana, Aged about 50^years, Occ. Business, At D.No. 22-11-81,82, Tunuguntla vari street, lalapet, Krishna nagar-ll, Guntur.

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Surya Agencies, Represented by its^proprietor, Yekkala Venkateshwarlu, Aged about 50^years, Occ. Business, At D.No. 22-11-81 ,82,^{Tunuguntla vari street,} lalapet, Krishna nagar-ll, Guntur.

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Vanukuri Sambi reddy and co, Represented by its^proprietor V.Sambi^reddy, S/o V.lvlusala Reddy, Aged about 60^years, Occ. Business,^{At D.No.22-'1'1-} 81,82, Tunuguntla vari street, lalapet, Krishna nagar-ll, Guntur.

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Palisetty Mohan Rao, S/o Balram Murthy, Aged aboul^{48 years,} Occ._Business, At D.No. 22-11-81,82,f unuguntla vari street, lalapet, Krishna^nagar-ll, Guntur.

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Lakshmi Narsimha chillies traders, Represented by^{its proprietor,TippiReddy} Narsimha Reddy, S/o Veera Reddy, Aged about 52^years, Occ.^Business'At D.No. 22-11-81,82, Tunuguntla vari street, lalapet, Krishna^{nagar-ll,Guntur.}

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...PETITIONERS

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AND

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1 Prthvi Asset Reconstruction and Securitisation Company^{Limited (PARAS),} Represented by its Vice President and Authorized Officer,^{Masjid Banda Road,} Kondapur, Hyderabad.

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2 Kothuri Venk-ata Siva Koteswara Rao^gupta, S/o^{KothuriVenkata VaraRao} Prasad Gupta, Aged about Major, Occ. Business,^{Fl/oKrishna nagar,Guntur}

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.,,RESPONDENTS

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Petition under Article 226 of lhe Constitution of^{lndia prayingthat in the} circumstances stated in the affidavit filed therewith,^{the High Court may be pleasedto} pass order or orders direction more particularly in the nature of Writ of^Mandamusor any other appropriate writ, order by declaring^{the action of the respondentbank in} trying to take^{physicalpossession} of the schedule^{property throughadvocate} commissioner without serving any notice^{vide crl.mp.18of 2021 of CJM-CUM-PASJ'} Guntur in respect of all that the schedule^{property D.No.22-11-81} ,^{82, Tunuguntla vari} street, Lalapet, Krishna nagar-ll, Guntur^{as illegal, contrary to law and rulesand} consequen^y set aside any the^{proceedingsof the respondent No.1 bank as illegal,} arbitrary against the^principles of natural^{Justice and unfair.}

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lt2il

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lA NO: 1 oF 2021

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Petition under Section 151 CPC praying that in the circumsitances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings of the respondent bank including taking ph'rsical possession of the schedule property through Advocate commissioner in purr,uance of orders of cJlv-cuM-PASJ, Guntur vide crt.mp.18 of 2021 being executed by 25t6t2o2t without serving any notice by the respondent no.1 bank or advocate conrmissioner and pass such other orders and circumstances the case to which the petiticner are entifled to in the interest of justice pending disposal of the above writ petition.

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Counsel for the Petitioner: SRl. G.K. DESHPANDE

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Counsel for the Respondent No.1: SMT V. DyUMANI, SC FOR F,ARAS Counsel for the Respondent No.2: NONE APPEARED

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY AND THE HON,BLE DT. JUSTICE SHAMEEM AKTHER WRIT P ETITION o.L4637 OF 202L

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ORDE R : (Per the Hon'ble Dr. lustrce Shameem Akther)

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This Writ Petition, under Article 226 of the Constitution of india, is filed by the petitioners, wherein, the following prayer is made:

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"... to pass order or orders direction more particularly in the nature of Writ of Mandamus or any other appropriate writ, order by declaring the action of the respondent bank in trying to take physical possession of the schedule property through advocate commissiorier without serving any notice vide crl mp 18 of 2027 of ClN4-CUM-PASJ, Guntur in respect of all that the schedule property D.No.22-11-81, 82, Tunuguntla vari street, Ialapet, Krishna nagar-II, Guntur as illegal, contrary to law and rules and consequently set aside the proceedings of the respondent No.1 bank as illegal, arbitrary against the principles of natural -Justice and unfair and pass such other orders or o rder ... "

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Heard the learned counsel for both sides and peruseo the record.

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3, The case and the contentions of the petitioners, in brief, are that they are the tenants of the subject property, owned by the respondent No.2, by way of rental agreements, dated 10.12.2013, 15.11.2013, 76.12.2013 and 20.06.2013, and they are in^possession of the subject property. The^petitioners are running business in^the subject^property since several^years and eking out their^livelihood' While so, on 20.04.2021, the respondent^No.1 along^{with Advocate} Commissioner came to the subject^{property for takingphysical} possession of the subject property stating that respondent No.2^stood

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as guarantors for the loan^{availed in the year 2016 and offeredthe} subject^property as security. As^{the borrower or the t;uarantorshave} not repaid the loan amount,^proceedings were initiated^underthe Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for sltort,^'SARFAESI Act') and^pursuant to the same, warrant was issur:d by the Chief Judicial Magistrate - cum - Principal Assistant :iessions ludge, Guntur, in Crl.tvl.P.No.1B of 2021, filed under Se,:tion 14 of the SARFAESI Act, to take possession of the subject property. The respondent No.1, without serving notice on the Fetitioners, even though the petitioners are in possession of the subject property, is trying to take possession of the subject property. Since the petitioners are tenants of the subject property prior to the mortgage and are in possession of the same, they cannot be evicted without following due process of law and ultimately, prayed to allow the Writ Petition, as prayed for.

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Smt. V. Dyumani, learned Standing Counsel fcr the respondent No.1, would submit that notice was issued by the Advocate Commissioner for taking possession of the subjecr property. The procedure contemplated under the SARFAESI Act has been followed by the respondent No.1. There are no merits in this Writ petition and ultimately, prayed to dismiss the Writ petition.

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As seen from the material placed on record, the learned Chief Judicial Mag istrate-cu m-^principa r Assistant sessions Judge, Guntur, has appointed an Advocate commissioner to take possession of the subject property.

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...-.

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Here, it is dpt to state that judicial review under Article 225 of the constitution of India is directed, not against the decision, but the decision-maklng process. Administrative decisions are subject to judicial review under Article 226 of the constitution of India, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds, administrative decisions cannot be interfered with. A decision is vitiated by irrationality, if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken such decision. In the instant case, the Crl.M.P.No.lB of 202t filed under Section 14 of the SARFAESI Act by the respondent No.1 before the Chief ludicial Magistrate-cumPrincipal Assistant Sessions Judge, Guntur, is pending. It requires adjudication/determination by the said Court. Moreover, no circumstances as indicated above, or extraordinary^{circumstances} exist to grant the relief sought for. However, the^{petitionersare} entitled to work out the remedies^{availablein accordancewith law'}

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7, With the above observation,^{this Writ Petitionis disposed of}

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Mlscellaneous Petitions,^{if any, pending in this WritPetition}

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shall stand closed.^{There shall be no order as to costs'}

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SD/. K.VENKAIAH ASSISTANT REGISTRAR ,TRUE COPY/I Go

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SECTIOi OFFICER

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To, 1 TheVicePresidentandAuthorizedofficer,PrthviAssetreconstructionAnd Seiuiit'isrtion corpinv^{r-iiteO (PARAS),trilasjidbanda road' Kondapur'} Hvderabad 2. oir"-Cbto Sri G.K.^{Deshpande, Advocate} [OPUC-] -- J, 6;; cc i6 Smw.^{ovrdni,SC FoR PARAS [oPUC]} 4. Two CD Copies 5. One Spare CoPY CHR

HIGH^COURT

DATED:0410812021

ORDER

W.P.No.14637 of²⁰²¹

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DISPOSING OF THE WRIT PETITION WITHOUT COSTS

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Spider Photo Studio and 5 Others v. Prthvi Asset reconstruction And Securitisation company Limited (Paras) and Another

Case brief

What is this about?

What did the court decide?

Spider Photo Studio and 5 Others v. Prthvi Asset reconstruction And Securitisation company Limited (Paras) and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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