High Court dismissed a writ petition filed by Tata Capital Housing Finance challenging a possession notice issued without serving a demand notice, finding a valid demand notice had been issued and received, and stayed all proceedings before disposal of the petition.
Stay on proceedings vacated. Writ petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)
WEDNESDAY, THE THIRD DAY OF FEBRUARY TWO THOUSAND AND TWENTY ONE
PRESENT
THE HON'BLE SRI JUSTICE A. RAJASHEKER REODY AND
THE HON'BLE DR. JUSTICE SHAMEEM AKTHER
WRIT PETITION NO: 19387 OF 2020
Between:
Syeda Marifath Jahan, Wo Quasim Ali Khan Mohammed, Aged 45years, Occ.Business, R/o. Flat No.304, Third. Floor, Hanging Gardens Apartments, Syed Nagar, First. Lancer, Banjara Hills, Hyderabad-sO0 034.
...'ET'T'ONER
AND
TATA Capital Housing Finance Limited, Rep. by its Authorized Officer, Plot No.3 to 6 Road No.3, Auto Plaza, Opp. Times of lndia, Banjara Hills, Hyderabad-s0O 034, Telangana State.
...RESPONDENT
Petition under Atricle 226 of the Constitution of lndiapraying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an approprrate Writ, Order or Direction more particularly one in nature of WRIT OF TMANDAMUS declaring the action of the respondent in issuing impugned Possession Notice dt.22l1012020 in respect of Flat Bearing No.304, in the Third Floor of Hanging Gardens Apartments with built up area ol 2200 Sq.ft.(including common areas and excluding of terrace rights), One Car Parking Spaces admeasuring'1 10 Sq.Ft. and One Servant Quarter admeasuring 120 Sq.Ft. together with undivided share of land admeasuring 98.42 Sq.Yds. or 82.27Sq. Mtrs. out oftotal land admeasuring 2033J4 Sq.Yds.) inpremises bearing municipalNos.10-5-391/10, 10-5- 391/10/5, 10-5-391/16/4/1 , 10-5-391/5/3, 10-5-391/10/#,10-5-391/10/4,situated at Syed Nagar, First Lancer, Hyderabad, Telangana State, bounded by:North: Open to Sky, South: Lobby, Lift and Stair Case, East: Open to Sky, West: Open toSky, without serving the demand notice under Sec.13(2) of theSecuritizationand Reconstruction of Financial Assets and Enforcement of securitylnterest Act, 2002is unlawful, illegal, arbitrary, unjust and against theprinciples of naturaljustice and consequently set aside the same.
lA NO: 1 OF 2020
Petition under Section 151 CPCpraying that in the circumstances statedin the affidavit filed in support of thepetition, the HighCourt may be pleasedto stay all further proceedings in respect of impugned Possession Noticedt.22-10-2020 in respect of Flat Bearing No.304, in the Third Floor ofHanging GardensApartments with built up area of 2200 Sq.ft.(including common areasand excludingof terrace rights), One Car Parking Spaces admeasuring1 10 Sq.Ft. and One Servant Quarter admeasuring 120 Sq.Ft. together with undividedshare of land admeasuring98.42 Sq.Yds. or 82.27 Sq.tMtrs. out of total land admeasuring2033.14 Sq.Yds.) in
/
premises bearing municipal Nos.'10-5-391/10, 10-5-391/10/5, 10-5-391/161At1, 1O-SSgltStS, 10-5-391/10/, 10-5-391t10t4, situated at Syed Nagar, First Lancer, Hyderabad, Telangana State, bounded by: North: Open to Sky, South: Lobby, Lift and Stair Case, East: Open to Sky, West: Open to Sky, pending disposal of the Writ Petition and pass
lA NO: 1 OF 2021
Betwe e n :
TATA Capital Housing Finance Limited, Rep. by its Authorized Officer, Plot No.3 to 6 Road No.3, Auto Plaza, Opp. Times of lndia, Banjara Hills, Hyderabad-500 034, Telangana State.
... Petitione r/Res ponde nt
AND
Syeda Marifath Jahan, W/o Quasim Ali Khan [,4ohammed, Aged 45 years. Occ.Business, R/o. Flat No.304, Third. Floor, Han s ing Gardens Apartments. Syed Nagar, First. Lancer, Banjara Hills, Hyderabad-500 034
...RespondenUPetitioner
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 vacate the interim order daled 2011112020 in W.P.No.19387 of 2020.
Counsel for the Petitioner: SRl. NAGESHWAR RAO PUJARI
Counsel for the Respondent: SRI P. RAMACHANDRAN
The Court made the following: ORDER
THE HON'BLE SRI JUSTICE A, RAJASHEKER REDDY AND
THE HON'BLE DT. JUSTICE SHAMEEM AKTHER
WRIT PETITION No.19387 of2O2O
ORDER:(Per Hon'ble Dr.SA,J)
This Writ Petition, under Article 226 of theConstitutionof India is filed by thepetitioner, wherein,the following prayeris made:
"...to issue an appropriatewrit,order ordirectionmore particularly one in nature of WRIT OF MANDAMUS declaring the action of the respondent in issuingimpugnedPossession Notice dated 22/Lo/2O2o in respect ofFlat bearing No,304 in the Third Floor of "Hanging Gardens"Apartmentswith built up area of 22OO sq ft (including commonareas andexcluding of terrace rights), one car parking space admeasuring110 Sq Ft and one Servant Quarter admeasuring120 Sq Fttogetherwith undivided share of land admeasuring98.42 sq Yds or 82.27Sq Mtrs out of total land admeasuring2033.L4 Sq Yds in premises bearing Municipal Nos.1O-5-391/1O,10-5-39L/fO/5,lo-5' 3gr/L6/A/1, ro-5-39r/5/3,1O-s-391/10, to-5-39l/LO/4 situated at Syed Nagar, FirstLancer,Hyderabad,Telangana State, bounded by North:Open to sky, South: Lobby, Lift and Stair Case, East: Open toSky,west:OpentoSky, without serving the demandnotice underSection 13(2) ofthe Securitization and ReconstructionofFinancial Assetsand Enforcement of SecurityInterest Act, 2OO2 is unlawful,illegal, arbitrary, unjust and againstthe principlesof natural justice and consequently setasidethesame and passsuchother order or orders...."
)
Act"), has been served on thepetitioner. Without servingthe said demand notice, the respondent-Tata CapitalHousing Finance Limited, Hyderabad, issued theimpugnedpossession notice, dated 22.70.2020, in respect of Flat bearingNo.304, Third Floor, "Hanging Gardens" Apartments situated at Syed Nagar, First Lancer, Hyderabad, to thepetitioner, whichis unlawful, illegal and arbitrary and ultimately,prayed toallow the writ petition asprayed for.
4, On the other hand, learned counsel for the respondent would submit that on 28.07.2020, the . respondent issued demand notice under Section 13(2) of the SARFAESI Act to the petitioner and the same was received by the petitioner on 04.08.2020. After receipt of the said demand notice, the petitioner issued reply on 28.70.2020. A copy of the said reply dated 28.10.2020 has been filed along with the counter.
J
II
demand notice was issued to her is unsustainable. Further, it is borne by record that no reply has been filed to the counter filed by the respondent herein.
Miscellaneous petitions, if any, pending shall stand closed.
There shall be no order as to costs.
,TRUECOPY//
SD/-T.KRISHNAKUMAR ASSISTANTREGISTRAR secrrci\Krrcen
To,
1 One CC toSri Nageshwar Rao Pujari AdvocateI clOPUC] 2. 6;; dC iosri p. R'amachandran Advocate [oPU 3 Two CDCoPies CHR
"{"
HIGH COURT
DATED:0310212021
ORDER
W.P.No.19387 of 2020
"r,| c f4 14:
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DISMISS!NG THE WRIT PETITION WITHOUT COSTS
2.\
2 issues framed by the court
Whether the possession notice issued under Section 13(4) of the SARFAESI Act without serving the mandatory demand notice under Section 13(2) is unlawful and arbitrary.
Whether to vacate the interim stay order pending disposal of the writ petition.
2 provisions across 2 enactments
TATA Capital Housing Finance Limited
Syeda Marifath Jahan
A. RAJASHEKER REDDY
SHAMEEM AKTHER
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
