Dismissed

Shaik Mohiuddin v. M/S. City Union Bank Limited

Telangana HC17 Feb 2022WP/19961/2019

Case brief

AI extract

What is this about?

The High Court dismissed writ petitions challenging a bank's attachment order and notice for possession of property. The Court held that disputed questions of facts regarding the attachment and the validity of a sale agreement required determination by the appropriate adjudicating forum, not under Article 226.

What the court decided

AI extract

Shaik Mohiuddin Vs M/S. City Union Bank Limited — Banking and Recovery | Telangana HC (2022)

¶1

HIGH COURT FOR^{THE STATEOF TELANGANA} AT HYDERABAD

¶2

(S pec ial Original J urisdiction)

¶3

THURSDAY. THE^{SEVENTEENTHDAY OF FEBRUARY} TWO THOUSAND^{ANDTWENTY TWO}

¶4

PRESENT

¶5

THE HONOURABLE^{SRIJUSTICEUJJALBHUYAN} AND

¶6

THE HONOURABLE^{ST\4TJUSTICE P.SREE SUDHA}

¶7

WRIT PETITION NO:^{199610F2019 AN D3047 0F 2022}

¶8

w.P. No.1996^{1 of 2019}

¶9

Between:

¶10

Shaik Mohiuddin,^{S/o Shaik Hussain Aged 57 Years' Occ Business' Fl/o' H No 13-4-} ;ii?d/AJI,'F;;;i;,ii^{xir"n, (rrl,'p'i", Asif Nagar'Hvderabad- 500067'}

¶11

...PETITIONER

¶12

AND

¶13

1 I/iS. Citv iifi;;liriil Union Bank e-!?ii)r^Limited, ,^{ci"ri,o Rep Fi"Ji by its Fioi Branch r'ro t , n sRSo {vlan€ger.8s Nasar Branch' Authorized Officer'r-G} Eiii[, otritur"bolony,'ECIL^{Post, Hvderabad- 500062'}

¶14

2 NI/s. R.B.L^{BankLimited, Repby its Authorized Officer'MadhapurBranch'} Hyderabad.

¶15

3 E[.'k:'Fi;i Sri. Hitesh Ramesh lt];5o-C,^{5n Sai Jain,S/o. Ramesh nus,o"ncv, Gavdeen Bash' KumarOtarmal Jain' R/o' 2-3-421' rvl G Road'B} RJmgopatpet,^{Secunderabad - 500003'}

¶16

4 The Sub Registrar,^{Hyderabad, Stamps and RegistrationsAct' Situated at Red} Hills, Hyderabad.

¶17

RESPONDENTS

¶18

Petition Under^{Article 226of the Constitution of lndia praying that in the} slated in the^{afiiOavitfiled therewith'the High Court may be pleased} "ir"rr"tla'nc". to issue an order^{or directrontr writ of mandamusdeclaring the ordersdated} bt.ot:org^{in 0.A.No.183 of 2019 passed by Debt RecoveryTribunal-ll, Hyderabad} *iin^-i".p""t to^{petition scnedule propertiare without} .jurisdiction'^illegaland ;;itrr;y;;;^{not applicable to the Petition Schedule Propertiesas the samearenot} ,nJ"i ilortgug"^{itn n".pona"nt No'1 and further declare the ordersdated} oo.oi.Zofg'1n"f^{.A.No.1114/2019in O A No 183/2019as illegal and arbitrary..and} wirnoui lurlsoiction^{and consequently,direct the 1st Respondent Banknot entitled} against tne Petition^{Schedule Property and further directthe} ii,:i ""v'"tt""nrent A"+oi Ount^{No.4to iegisterthe sale deedby executedby RespondentNo 3'. in} favour of the^{Petitioner, in respectof the property bearing No 5'9-164' admeasuring} rig-tq.v"to" iopti"ing^{ot brouno +wo upper floors situated at Chapel Road'} Abids, Hyderabad.

¶19

IAN O:1OF 19

¶20

Petition Under^{Secrion 151 CPC praying thatin the circumstancesstated in} tire afiaavii-tirea^{in support of the petition, in"-HignCourt.may be pleased to direcl} i[u nu"po"d""t^{No. 4'to regisGitiresale deed executedby the Respondent No 3} infavourofthePetitioner,-inrespectofthepropertybearingNo.5-9-1.64, ,o.""irring^{189 Sq.Yards comprisingof Ground + two upper floors situated at} Chapel Road,^{Abids,HYderabad}

(- )-

lA NO: 2 oF 2019

Petition Under Section 151 CPC^{prayingthat in the circumstancesstated in} the affidavit filed^{in support of the petition, the HighCourt may be pleased to permit} the petitioner to file the Encumbrance certificate^{dated 15.11.2019as an additional} materiat^paper in the above^{Writ Petition, in the interest of justice.}

¶25

Counsel for the Petitioner^{: SRI.G.K,DESHPANDE}

¶26

Counsel for the Respondent^{No.1: SRI.AMBADIPUDI SATYANARAYANA}

¶27

Counsel for the Respondent^{No.2 : SRI.P.SRIHARSHA REDDY}

¶28

Counsel for the Respondent No.3^{: NONEAPPEARED}

¶29

Counsel for the Respondent No.4^{: GP FOR REVENUE/ SRl.MlRJAFAR ALIKHAN}

¶30

W.P.NO: 3047 OF 2022

¶31

Between:

¶32

Shaik Mohiuddin, S/o. Shaik Hussain Aged.57^{Years, Occ. Business,R/o. H.No.13-4-} 581291N2, Pannipura, Karwan, Kulsumpura,^{AsifNagar.Hyderabad - 500067.}

¶33

...PETITIONER

¶34

AND

¶35

M/s. City Union Bank Limited, Rep. by^{its Branch lilanagerand Authorized} Officer, Situated al1-19-971111, Ground Floor,^{Plot No.1,A.S.Rao NagarBranch,} l-G Block, Officers Colony, ECIL Post, Hyderabad^{- 500062.}

¶36

M/s. R.B.L Bank Limited, Rep. by its Authorized^{Officer, Madhapur Branch,} Hyderabad.

¶37

Sri. Hitesh Ramesh Jain, S/o. Ramesh Kumar^{Otarmal Jain,FVo. 2-3-421} ,^B Block, Flat No.303, Sri Sai Residency, Gaydeen^{Bagh, M.G. Road,} Ramgopalpet, Secunderabad^- 500003.

¶38

The Recovery Officer-Z, The Debts Recovery Tribunal^-2 Hyderabad Abids, Hyderabad. Telangana State.

¶39

Sri. Srikanth Reddy, Advocate Advocate Commissioner R/o. 3-5-873,^A-407, Matrusri Apts, Hyderguda, Hyderabad^-500 029.

¶40

..,RESPONDENTS

¶41

Petition Under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be^pleased to issue writ in the nature of Mandamus, declaring the Advocate Commissioner Notice Dt. 03-01-2022 issued by Advocate Commissioner (Respondent No. 5) in terms of Orders^passed in RP No. 482 ol 2019 in OA No. 183 of 2019^passed by the Honourable Recovery Officer-2, Debts Recovery Tribunal -2 Hyderabad for taking physical possession of the Schedule property on 21-01-2022, as illegal, arbitrary and against^provisions of the SARFASI Act and the^principles of natural^justice and also oppose to Article 14 of Constitution of lndia and set aside the same by holding that the respondent No 1 bank and the Respondent No 4 have no manner of nght to attach and sell the schedule property for the recovery of the dues of the respondent No.1 bank.

¶42

.=- 3

¶43

IA NO :1 oF 2022

¶44

Petition Under Section 151 CpC praying that in the circumstances stated in the affidavit filed in support of the petition, tne Fign Court may be pleased to stay a, the further proceedings of Advocate Commissionir Notice Di. 03_01_2022 issued by 1!:..."1"^^{C^ommissioner(Respondent No.S) in termsoi Orders passed} in Rp No. 482 ol 2019 in OA No. 183 of 2019 passed by tf,e lonouiatle Recovery Otficer_i, Debts Recovery Tribunal -2 Hyderabad for laking pny.icat po""ession of the Schedule property on 21-01-2022 till the disposat ot tie iresent writ petition.

¶45

Counsel for the Petitioner : SRI.G.K.OESHpANOE

¶46

Counsel for the Respondent No..l : SRI.AMBADIpUOI SATANARAYANA

¶47

Counsel for the Respondent Nos.2 to 5 : NONE APPEARED

¶48

The Court made the following COMMON ORDER

¶49

HON'BLE SRI JUSTICE UJJAL BHUYAN AND HON'BLE SMT. JUSTICE P.SREE SUDHA

¶50

PETITI NN t99 10F o19 D3 70F o22

¶51

COMMO N ORDE R

¶52

l. Shaik Mohiuddin, filed Writ petition No.3O4 Z of 2e22 against City Union Bank Limited and others for issuance of a Writ of Mandamus declaring the Nodce dated 03.01.2022 issued by the Advocate-Commissioner-fifth respondent herein for taking physical possession of the schedule property as per the order in R.p.No.4g2 of 2019 in O.A,No. 183 of 2Ot9 dated 21.01.2022, as illegal, arbitrary and against the provisions ctf the Sccuritisation and Reconstruction ol l.inanci;tl Assets and Enlbrccmcnt r.rf Sccr-rrin. Interest Act, 2002 l,1rtr ltretity,^.thc SARITAESI Ar:r,)

¶53

L,)arlier, the petitioner in W.p.No.3O47 ot 2022 had also filed W.P.No.1996l of 201,9 in which respondent Nos. I to 3 are similar and respondent No.4 is the Sub-Regisrrar seeking a Writ of Mandamus to declare the order in O.A.No. 1g3 of 2019 dated 06.06.2019 passed by the Debts Recovery Tribunal-ll, Hyderabad, as arbitrary and also to declare the order in I.A.No.11l4 of 2019 in O.A.No.183 of 2O),g dared 06.03.2019, as illegal and to direct the Sub-Registrar-fourth respondent to register the sale deed executed by the third respondent in his favour in respect of the suit schedule property.

¶54

l'he pctitioncr mainlv contencled that he entered into an a{lreemcnt of sale rvith flirc_s}t Rrirnesh .larn thircl rcspondent on )).O2.2O19. As the said propcrtl u.Lrs nlortgaged to the Il.B.L. Bank

¶55

Limited-second respondent herein, he cleared the entire due amount of Rs.2,01,00,000/ - and the bank executed re-conveyance deed on 18.07.2019 uide document No.2392 of 2019 and also issued No-Objection Certificate and the original link documents. He would further contend that when they went for registration on 13.07.2019, they came to know that the first respondent bank obtained ex parle attachment order on 06.03,2019, and as such, he filed W.P.No.19961 of 2019 and W.P.No.3O47 ot 2a22. He uould also state that hc is a third parlv to thc procecdrngs arrd thc third respondent is not^hts relative and there is no collusion between them and thus seek to sct aside the notice dated 03.O1.2022 issued for physical^possession oI the property by the Advoca te-Commissioner.

¶56

In the counter l'iled bv the Cit,v Union Bank Limited-first respondent in W.P.No. 19961 of 2019, it is contended that thc petitioner has not disclosed the date of purchase of the properry, not chosen to file copy of the agreement of contract and not^even disclosed the details of the date of transaction or the amount of purchase either in the alfidavit or in the paper publication and thus, the question of priorities between the petitioner and the respondents cannot be resolved. It would further contend that the petitioner is not a purchaser of the property and has been set up by the third respondent to defeat the attachment order obtained by the first respondent on 06.03.2019. It u,ould also contend that they have no knowledge of mortgage in favour of the second respondent^bank. Even otherwise, the prior mortgage if created validly, it^{will notdebar} any other creditor to seck attachment of the mortgaged^{propertv as} per the provrsions of thc Ordcr XXXVIII Rule^{'lO CPC.When once ll.le} attachment is subsistinU on a propcrt'. and^it ''vas^{communicaled lo}

¶57

the concerned Sub-Registrar, no prudent purchaser will purchase the property without verifying the same. Thus, the petitioner will not have any right over the property. Moreover, he ought to have availed alternative remedy of filing a claim petition before the Debt Recovery Tribunal for raising attachment, but without doing so, he straight alr,ay invoked the writ jurisdiction.

¶58

5 lt ri'ould I'urther contcltd thllt rhr' Ilon'blc Supreme Court in cirtcna ol jLrdgme r'tts ( lcarl\ lrcki thaL thc r,, rit pctitions under Article -22ir^<.r1 thr Ccrnstitutlort ol lntlia sltall n()t b( ent(.rtailtcd^,",,,hen there rs ]n efleclir,c trlternatirc rcrtrccl., lll tlle prcscnt casc, there arc scve|al disprrted questions o[ iacts in relation to the collusion oI the petitioner and the third respondent, genuineness of the alleged transaction betrveen them and knorvledge ol the petitioner about the attachment have to be adjudicated by adducing the evidence belore the competent forum, but not under ArLicle 226.

¶59

The second respondent-Bank also filed counter affidavit stating that Hitesh Ramesh Jain, Director of R.E. Cables and Conductors Pvt. Limited, approached the bank for sanction of credit facility for business purpose and mortgaged certain properties with them. When he defaulted in repayment of the loan amount, the second respondent irled O.A.No.77 of 2e21 on the hle of the Debts Recovery 'lribunal-ll, Hyderabad. The house property bearing Municipal No. 5-9-164, admeasuring 189.43 square vards, situated at Chapel Road, Abids, Hyderabad, is one oI his properties, lor which, he approached lire second respondent and repaicl Rs.2,0l,OO,O0O/_ and thus, they cxccuted a conveyance deed and the second respondent is not a party to O.A.No. 183 oi 20 i9. He came to know.abr.:ut thc attachment order

¶60

only whcn thc purch.lser oi Ghatkcsar properLv infrlrmcd thcnt. Th( second respondent alonc has Lhc right ro deal rvith tl.rc said properties and no other bank shall have any sort of claim over t).re said properties.

¶61

City Union Bank Limited filed O.A.No.183 of 2019 on 15.02.2079 against several defendants including Hitesh Ramesh Jain, who is a partner of M/s.Blaze Copper Wires, which is the third defendant in the said OA, for recovery of a sum of Rs.24,45,25,048/ -. During the pendency of the said OA, the bank filed I.A.No. l114 oI 2019 on 06.03.2019 for conditional attachment beforeiudgment, and on the same dav, the Tribunal ordcred for attachment and also issued urgent noticc bv ad.journing lhe mattcr to 19.03.2019 for filing counters / writtcn statcments b.' thc dcfendants. But, the dcfcndartts, in spite of service of summons, remained absent and hence they rtere sel ex parle on 22.O5,2O19. Subsequently, the Tribunal disposed of the main OA by its order dated 06.06.2019. The attachmcnt of I hc properties in thc said i.A. $'zrs made absolute, cxcept Item No.l.

¶62

The writ petitioner also filed rejoinder to the counter ol the first respondent in which he furnished the details of payment of Rs.2,01,00,000/- to the bank in^page No.3 as follows:

¶63

sl. No	Modeof payment I	Date	Bank	Amount (Rs.)
	eq ThroughCh bearing No.429907		SBI	1,00,000/-
B	ThroughCash	22.02.20t9		1,11,111/-
C	ThroughDemand Draft beang No.279648	01.07.20i9	SIJI	s0,00,000/,
D	DepositedCash	18.06.2019	M/s.R.8.1,. BankLimited	50.00.000i

¶64

¶65

E	Deposiledcash	IL072019	M/s.R.B.L. BankLimited	50,00,000/-
tr	As percovering lettet	t1.07.2019	M/s.R.B.L. BankLimited	46,05,000/^-
(l	Depositedcash		M/s.R.B.L. BankLimited	2,83,8891^-
		'fotal	amour!	2,O1,00,000/-

¶66

!l ln ClaLrsc (E) ol r'('-con,( \ irnce citeri diLtccl 18.07.2019, the rrr.,clc of pa] nlcr)l is follt.rir s:

¶67

'E. The Mortgagors have, as on I4-07-2{J19 paicl Rs.4,50,000/-, l806-2019 paid Rs.50,O0,000/-, 08-07-2019 paid Rs.50,00,000/-, I l- 07-2019 paid Rs.50,00,000/- and on l2-O7 -2019^paid Rs,46,50,000/- total amount repaid Rs.2,01,00,000/ -^(Rupees Two Cores One Lakh Only) towards the monies due/Credit Facilities availed by Mortgagors from the Mortgagee^("Repayment Amount").'

¶68

10.^"Ihe writ petitioner stated that his rights are subsisting prior to the attachment order dated 06.03.2019. The third respondent executed receipt on 22.O2.2019 and agreement of sale on 24.O4.2OI9 and gave publication on 16.05.2019. He also stated that when he contacted the third respondent, he came to know that he has taken appropriate steps for setting aside lhe ex parte ordef in O.A.No. i83 of 2019. Hitesh Ramesh Jain is also the Buarantor in O.A.No.183 of 2019, and as such, as man)'as 24 properties pertaining to him are attached. The Itcm No.1 $'as dcleted because the suits being O.S.Nos.29 I and 33t3 ol- 2017 lrc penclinlS belbre the trial Courts, llitcsh l?amcsh Jain is orrt of thc dclr-nclar.lts in O.A.No. 183 of 2019. ln spite of service of summons, he has not appeared before the Tribunal nor filed counter/written statement on 19.03.2019 and represented that he entered into an agreement with the ',vrit petitioner herein and he cleared entire dues to the R.B.L. Bank Limited and thus, the said property cannot be attached. In fact, he

¶69

never approached tlris Court stating tl-tat hc execured at-r agrccrncrlt of sale in favour of thc !'rit pctitjoner, thus. rhe order of rhc Trihunal in respect of attacl.rment of the said prope rt] is illcgal.

¶70

No doubt. Hitcsh Ranresh .lain uide his letlcrs rlatcrl 18.06.2019, 11.07.201.1 ancl 0l.Ofi.20l9, a(ldrc'ssed to ll'rc Bar.rli Manager oI R.B.L. Bank Limited, has stated that hc cntert'-d into an agreement with Shaik Mohiuddin for sale oI mortgaged propcrtY admeasuring 189.43 square yards, situated at Chapel Road, Abids, Hyderabad, in order to ciear the outstanding dues pertaining to their company in the capacity of a guarantor, he was depositing the amounts as stated by him in the said letters. Hitesh Ramesh Jain never stated that the petitioner herein u,as repaying the amounts on his behall and thus, thc u,rit petitioner herein instead ol llling thc claim petition for raising thc attachment, hastily invokcd thc r|rit jurisdiction r,r'hcn therc is arr cllicacrous;iltcrnativc rcmedr ar':ril;rblr' to him. Whcr.r tlrcrc arr sevt-l-al rlispurcri qucstiorrs ol iacts. I'tc rs^r-rot entitled for a u'rit o]- mandamus Llndcr Article 226. Likeu isc. hc is also not cntitlcd to scek a direction Lo lift the attachmcnl ordcr against thc [irst rcspondcnt bank and he has to uork oul hrs re medie s again s t his vendor.

¶71

On perusing the above plcadings, facts and circumstanccs, this Court is of the opinion that there is an alternative and eflicacious remedy is available to the petitioner, and in view of the disputed questions of facts raised by the parties, this Court is of the further opinion that the present writ petitions are not maintainable^and hence, they are liable to be dismissed,^{leavingthe parties to ventilate} their grievance before the appropriate^{forum in accordancewith law.}

¶72

Accordingly, both the Writ petitions are dismissed, however u'ith libcrtv as above. There sharll bc no order as to costs.

¶73

I -l. Pe ndinc miscellancous peritions, il. arrr , shall also stz,rnd dismissed in the lighr ol this linaijudgmcnt.

¶74

SD/.T.KRISHNA^KUMAR ASSISTANT^REGISTRAR

//TRUE^COPY//

SECTION^OFFICER

e'PUc

i.^g*: EE i, :nl,,,emH#,m'eiffiti$,llttfl

¶81

Two^{CD CoPies}

¶82

One^sParecoPY SA LS

HIGH^COURT

DATED:'t710212022

COMMON^ORDER

WP.Nos.19961^{of 2019 AND3047ol 2022}

¶87

E STATA
1
I
cr,) 0 7 Mlq 2022 _/-1
,,, ,/
* ..,./
r'Ea. - " ..-'

¶88

DISMISSING^{THEWRIT PETITIONS}

¶89

WITHOUT GOSTS.

¶90

tc)=---

Shaik Mohiuddin v. M/S. City Union Bank Limited

Case brief

What is this about?

What the court decided

Shaik Mohiuddin v. M/S. City Union Bank Limited

Case brief

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What the court decided

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