Disposed

Sri.Mohammad Saleem v. Bank of Baroda

Telangana HC12 Apr 2022WP/4507/2022

Case brief

AI extract

What is this about?

Hospitality and travel plans. This concern was placed before the High Court under Article 226 of the Constitution of India. The petitioner challenged the legality of possession under the SARFAESI Act. The Court ordered a 15% deposit of dues to stay enforcement, subject to Tribunal hearing.

What did the court decide?

Petitioner directed to deposit 15% of outstanding dues within 30 days; respondent banks directed not to proceed with possession notice during this period; deposit subject to Tribunal outcome.

Sri.Mohammad Saleem Vs Bank of Baroda — Civil Procedure and Limitation | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA (Special Original Jurisdiction)

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TUESDAY .THE TWELFTH DAY OF APRIL TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE UJJAL BHUYAN AND

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THE HONOURABLE MRS JUSTICE SUREPALLI NANDA

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WRIT PETITION NO: 4507 OF 2022

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Betwee n:

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Sri.li.4ohammad Saleem, son of late lt4ohammad l,4ahboob Ali, aged about 58 years, Occupation. Business, resident of House No.8-3-231/A/1 20, 121 , 138 and 139, Sri Krishna Nagar, Yousufguda, Hyderabad 500 045 Telangana State

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..PETITIONER

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AND

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Bank of Baroda, represented by its Authorized Officer, Ramanthapur Branch, 3-12-501A, Ganesh Nagar, Uppal Kalan, Ramanthapur,, Hyderabad 500 013

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Bank of Baroda, represented by its Chief l,,/anaget, Ramanthapur Branch, 3-12-501A, Ganesh Nagar, Uppal Kalan, Ramanthapur, Hyderabad 500 013

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M/s.Venkateswara Traders, represented by its Proprietor Sri.Samala Suresh, House No.8-3-678/66, Pragathi Nagar, Srinagar Colony, Hyderabad 500 045

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Sri.Samala Suresh, son of Sri.S.Guruvaiah, aged about 35^years, Occupation Business, resident of House No.1^-1-287i1 9/1 , Chikkadpally, Hyderabad 500 027 Telangana State

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5, Sri.lt4.Kishore Varma, son of Sri. M.V. Raghavulu, aged about^{45 years,} Occupation. Business, resident of Flat No.102, First Floor, Om Sri Sai Tomo, Vijaya Diagnostic Centre, Street No.1 9, Himayatnagar, Hyderabad 500 029 Office. Flat No.3i9, Ramdas Garden, First FIoor, West^{N,4arredpally,} Secunderabad 500 003

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lClcl Bank Limited., represented by its Chief lr,4anager, House^{No.1-1 1-256,} lClCl Bank Towas, RAPE, Level ll, East Wing, Begumpet, Hyderabad⁵⁰⁰ 016

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Sri Srinivasa Enterprises, represented by its Authorized Signatories, Recoveries and Financial Services,^(Govt. of Telangana State Regd.No.1^123, 3-571107, Satyanagar Colony, Uppal, Medchel District 500 039

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Email. ko nd a^pa llycha ry9 @g ma il. co m

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...RESPONDENTS

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Petition under Article 226 of the^{Constitutionof lndiaprayingthat in the} circumstances stated in the^{affidavit filed therewith,the High Court may be} pleaseci to issue an appropriate writ,^{order or direction particularly one in the} nature cf rvrit of l,4andamus^{to declare action of the respondentbank in issuing} the impugned notices dated^{11.01 .2022through advocalecommissioner} consequ"nt to the warrant^{of commissiondaled 1o.12.2021 issued by the chief} Metropolitan l,4agrstrate, at^{Hyderabadin Crl.M.P.No.7B of 2021 underSection} 14 of the Securitization and^{Reconstructionof the FinancialAssetsand} Enforcement of Security^{lnterestAct, 2002' thereby taking measuresas} contemplated under the^{provisionsof section13(a) of the securitlzation and} Reconstruction of Financial^{Assets and Enforcementof Securitylnterest Act,} 2OO2 as arbitrary, illegal^{and contraryto the provisions under the Securitization} and Reconstruction of Financial^{Assetsand Enforcement of securitylnterest Act,} and the Security lnterest^{(Enforcement)Rules,2002 and consequently set aside} the warrant commission daled 10.12.2021^{issued to the respondent No.3 herein} in the interest of^justice.

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lA NO: 1 OF 2022

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Petition under Section 151 CPC^{praying that in the circumstancesstate} d in the affidavit filed in support of^{the petition, the High Court may be pleased to} stay all further^{proceedings including taking physical possession of the schedule} menliorred properties in^pursuant of^{the advocatecommissioneis notice dated} 11.O1 .2022 in Crl.M.P.No. 78 of^{2021 on the file of the Chief N'4etropolitan} Magistrate, at Hyderabad by the^{respondent No.1 bank through advocate} commissioner in respect of the^{schedule of property (ies)thereunder.}

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lA NO: 2 OF 2022

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Petition under Section 151 CPC^{praying that in the circumstancesstate} d in the affidavit filed in support^{of the petition, the High Court may be pleasedto} stay all further^{ptoceedings in furtheranceto the orders d1.10.12.2021passedin} CRLN4P No. 78 of 2021^{passed by the LearnedChief MetropolitanMagistrate,} Hyderabad., including dispossession^{of the petitioner from the SA properties,} pending disposal the above writ petition.

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Counsel for the Petitioner^{: SRl.P NANDAKISHORE}

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Counsel for the Respondent^{Nos. 1 & 2 : SRINIVAS CHITTURU} Counsel for the Respondent^{No. 3 & 4 : SRI G KALYAN CHAKRAVARTHY} The Court made the following:^ORDER

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THE HONOURABLE SRI JUSTICE UJJAL^BHUYAN

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AND

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THE HONOURABLE MRS JUSTICE SUREPALLI^NANDA WRIT PETITION No.45O7 of 2O22

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ORDERI (Per Hon'ble Sn .,,ustice^{U.yal Bhugan)}

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Heard Ms. Kalyani, learned counsel appearlng^on behalf of Mr. P.Nanda Kishore, Iearned counsei^{for the} iletltioner^{and Mr. Srinivas Chitturu,learned counsei 1br} respondent Nos.1& 2.

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By fiiing this petil.ion under Articie 226^{ot r"'ne} Constitution of India,^{petitioner has cha-llenged legalityand} validity of the notice dated ll.Ol.2o22 issued by^the Advocate Commissioner for taking over^{physica-l possession} of the schedule property.

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According to the petitioner, he became^{the cwner} of the schedule property by virtue of^gift lrom^{his mothei'} Details of the schedule property are^{mentionedat pa,ragraph} 2 of the writ affidavit.

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2 UB,J &SN,J W.P.No.4507 of 2022

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Petitioner had^{executed a sale deed whereby the} schedule property^{was sold torespondentNo'5 upon} consideration mentioned^{in the sale deed' However,it is} alleged that^{respondentNo.s did not pay the full sale price} to the petitioner in^{terms of the sale deed. It is further} submitted that^{notu'ithstandingthe above, respondentNo 5} sold the schedule^{property to respondentNo'4 by another} sale deed.

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Respondent No.4 availed^{loan from respondent} No.2. For availing^{the loan, he had mortgaged the schedule} property with respondent No.2.^{When respondentNo 4} defaulted in repayment,^{respondent No'2 invoked provisions} under the Securitisation^{and Reconstruction of Finarcial} Assets and Enforcement of^{SecurityInterest Act' 2OO2} (briefly referred to hereina-fter^{as the 'SARFAESI Act')' As a} consequence, respondent^{No.2 hadapproachedthe} jurisdictional Chief Metropolitan Magistrate^{at Hyderabad} under Section^{14 of the SARFAESIAct. Upon warrant being} \ issued by the Chief^{Metropolitan Magistrate,the Advocate}

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.1 UB,J &SN,,I W.P.No.45O7 of 2022

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Commissioner issued the impugned notice Cated 1.1"0r.2022.

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In the meanwhile, it is stated that petitioner has filed a civil suit for cancellation of the sa-le deed execured in favour of respondent No.S, which has been registered as O"S.No.69 of 2021 , pending on the file of XXVI Additioneti Chief Judge, City Civil Court at Hyderabad.

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Agalnst the steps taken by respondent Nos.l & 2 under the SARFAESI Act, petitioner has approached the Debts Recovery Tribunal-li al Hvderabad (Tribuna-i) ur-rder Section 17 of the SARFAESI Act, which has been registered as S.A.No. \4i of 2021.

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Learned counsel for the petitioner submits that presently, there is no Presiding Officer in the Tribunal and therefore, Court may consider passing appropriate order as is being passed in identica-l matters.

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On the other hand, learned counsel for respondent Nos. 1 & 2 has strongly disputed the case

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<br>

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.+ UB,J &SN,J W.P.No.4507 of 2022

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projected by the petitioner and has placed reliance on a recent decision oi the Supreme Court in Dahiben v Arvindbhai Kalyanji Bhanusalil, to contend that nonpayment of sale price lvould not irrvalidate a sale deed upon exccut101-1

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Without entering into the contentious issues raised by learned counsel for the parties, Court is oi the vieq, that since petitioner has availed his statutory remedy under Section 17 of the SARFAESI Act by filing S.A.No.14i of 2021 before the Tribunal, it would be in the interest of justice if the petitioner purslles the said remedy. Hon'ever, since tlrere is no Presiding Officer in the Tribunal at present, we are of the view that upon payment of a percentage of the outstanding dues, respondent Nos.1 & 2 should not take coercive steps against thg petitioner till regular functioning of the Tribunal

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1 l. At this stage, learned counsel for respondent Nos.1 & 2 submits that outstanding dues of the borros,er

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rCivil Appeal No.9519 of 2019. decided on 09.O7.2O2O

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UB,J &S!{,J W.P.No.4507 of 2a22

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(respondent No.4) u.as quantified by respondent Nos.l & 2 at Rs.1,13,21,8A6.78 as on 31.03.2O2 1"

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In view of the above, we direct that if the petitioner deposits 15% of the outstanding dues as on date within a period of 30 days from today with respondent Nos.1 & 2, respondent Nos.I & 2 sha_ll not proceed further pursuant to the impugned notice of the Advocate Commissioner dated 11.01.2022, which in any event wouid be subject to outcome of S.A.No.141 of 2027. However. !\ie make rt clear that if there rs any default on the part oi the petitioner in making the payment as above, it rvould be open to respondent Nos.1 & 2 to proceed in accordance with iau, for realisation ol the outstanding dues. Needless to say, the amount to be deposited by the petitioner with respondent Nos.1 & 2 wouid be subject to outcome of S.A.No.14 r cf 2021 . In the event petitioner succeeds, he would be entitleC to refund, but in the event petitioner fails, respondent Nos.l & 2 would be entitled to appropriate the said amount.

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6 UB,J &SN,J W.P.No.45O7 of 2022

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i3. This disposes of^{the Writ Petition. Hou'ever,}

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thcre sha11 be^{no order as to costs.}

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14 As a sequel, miscellaneous^{applicationspending.}

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if any, in this Writ^{Petition, sha-1lstand closed.}

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SD/.T.KRISHNA KUMAR ASSISTANT REGIST

,TRUE COPY//

SECTION OFFICER

To,

Bank of Baroda, represented by its Authorized Officer, Ramanthapur Branch, 3-12-5OlA, Ganesh Nagar, Uppal Kalan, Ramanthapur,, Hyderabad 5OO 013

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Bank of Baroda, represented by its Chief l\rlanager, Ramanthapur Branch, 3-12-50/A, Ganesh Nagar, Uppal Kalan, Ramanthapur, Hyderabad 500 013

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M/s.Venkateswara Traders, represented.by its proprietor Sri.Samala Suresh, House No.8-3-678/66, Pragathi Nagar, Srinagar Colony, Hyderabad 5OO 045

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Sri.Samala Suresh, son of Sri.S.Guruvaiah, aged about 35 years, Occupation Business, resident of House No.1-1-2Blljlll , Chikkadpally, Hyderabad 500 027 Telangana State

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Sri.M.Kishore Varma, son of Sri.l.4.V.Raghavulu, aged about 45 years, Occupation. Business, resident of Flat No.102, First Floor, Om Sri Sar Tomo, Vijaya Diagnostic Centre, Street No.19, Himayatnagar, Hyderabad 5OO 029 Office. Flat No.3/9, Ramdas Garden, First Floor, West Marredpally, Secunderabad 500 003

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lClCl Bank Limited., represented by its Chief IVanager, House No.1-11-256, lClCl Bank Towas, RAPE, Level ll, East Wing, Begumpet, Hyderabad S00 0'16

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Sri Srinivasa Enterprises, represenled by its Authorized Signatories, Recoveries and Financial Services, (Govt. of Telangana State Regd.No.1 123, 3-571107, Satyanagar Colony, Uppat, lr,4edchel District 5OO 039 Emait. ko ndapa llychary9@gma il. co m

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