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2020 Supreme(AP) 144
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
RAKESH KUMAR, D. RAMESH, JJ.
Veerapaneni Sharat Babu – Appellant
Versus
Andhra Bank – Respondent
Writ Petition No. 6376 of 2018
Decided On : 06-02-2020
Advocate Appeared:
Rama Rao Mavidi, V. Dyumani.
Point of Law: Section 34 lays down that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Tribunal or Appellate Tribunal is empowered to determine
Headnote:
Constitution of India - Articles 226 and 227 - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Matter particularly financial matter having a statutory remedy available to the parties, it is yet another case in which the bank/secured creditor was prevented from realizing public money i.e. loan amount from the borrower/guarantor – Held, secured asset in the present Writ Petition is distinct from the property of the borrower which was subject matter before the High Court of Telangana at Hyderabad, the petitioner may not get any benefit from the order in W.P. No. 27837 of 2019, dated 16.12.2019. Moreover, the Debts Recovery Tribunal, Hyderabad, in the case of 2nd respondent-borrower i.e. in S.A. No. 468 of 2018, had primarily interfered on the ground that the 1st respondent-bank in its reply statement did not say anything with regard to service of E-auction sale notice, dated 01.07.2016, on the application (2nd respondent- borrower in the present case), which is not in the present case. Accordingly, we are of the considered opinion that the present Writ Petition has got no merit and as such deserve to be dismissed and it is hereby dismissed – Writ petition dismissed
Facts of the Case:
Writ Petition with a prayer to issue a Writ of Mandamus, or any other appropriate Writ, Order or direction declaring the Commissioner Warrant issued by the learned Chief Metropolitan Magistrate, Vijayawada in Crl. M.P. No. 4074 of 2017 in C.F. No. 6933 of 2017, dated 19.01.2018 and the consequential Notice dated 15.02.2018, issued by the Advocate Commissioner fixing the date on 22.02.2018 for taking possession of the petition schedule property consisting residential building H. No. 61-8/10-3/3 old and 61-8/10-3/5A new, situated in R.S. No. 35/2 at 2nd lane, Satyanarayana Nagar, Krishnalanaka, Vijayawada belonging to the petitioner as illegal, arbitrary, discriminatory and contrary to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002
Finding of the Court:
Secured asset in the present Writ Petition is distinct from the property of the borrower which was subject matter before the High Court of Telangana at Hyderabad, the petitioner may not get any benefit from the order in W.P. No. 27837 of 2019, dated 16.12.2019. Moreover, the Debts Recovery Tribunal, Hyderabad, in the case of 2nd respondent-borrower i.e. in S.A. No. 468 of 2018, had primarily interfered on the ground that the 1st respondent-bank in its reply statement did not say anything with regard to service of E-auction sale notice, dated 01.07.2016, on the application (2nd respondent- borrower in the present case), which is not in the present case. Accordingly, we are of the considered opinion that the present Writ Petition has got no merit and as such deserve to be dismissed and it is hereby dismissed
Result: Writ Petition shall stand dismissed
JUDGMENT :
RAKESH KUMAR, J.
1. Despite repeated direction of Hon'ble Supreme Court to the High Courts not to exercise jurisdiction under Articles 226 and 227 of the Constitution of India, in a matter particularly financial matter having a statutory remedy available to the parties, it is yet another case in which the bank/secured creditor was prevented from realizing public money i.e. loan amount from the borrower/guarantor.
2. The petitioner, in the month of February, 2018, by way of invoking writ jurisdiction of this Court, had filed the present Writ Petition with a prayer to issue a Writ of Mandamus, or any other appropriate Writ, Order or direction declaring the Commissioner Warrant issued by the learned Chief Metropolitan Magistrate, Vijayawada in Crl. M.P. No. 4074 of 2017 in C.F. No. 6933 of 2017, dated 19.01.2018 and the consequential Notice dated 15.02.2018, issued by the Advocate Commissioner fixing the date on 22.02.2018 for taking possession of the petition schedule property consisting residential building H. No. 61-8/10-3/3 old and 61-8/10-3/5A new, situated in R.S. No. 35/2 at 2nd lane, Satyanarayana Nagar, Krishnalanaka, Vijayawada belonging to the petitioner as illegal, arbitrary, discriminatory and contrary to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act’) and set-aside the same.
3. On 28.02.2018 a Division Bench of this Court in I.A. No. 1 of 2018 stayed further proceedings since the petitioner persuaded that the respondent-bank in its own wisdom proceeded in the first instance only against the property of the principal borrower and brought its mortgaged property to sale. The proceeds received therefrom are in the range of Rs. 64,00,000/- which, admittedly, cover most of the outstanding dues leaving a balance of about Rs. 10,00,000/- or so. The Division Bench of this Court was further persuaded that as the principal borrower moved the jurisdictional Debts Recovery Tribunal and obtained stay of confirmation of the said sale, the bank now seeks to proceed against the guarantor's residential property which was mortgaged with it. The Division Bench considered examining validity of such action and thereafter interim stay order was passed. The docket shows that after the order of stay, one way or the other, hearing in the matter was deferred on several dates, mostly at the instance of the petitioner/guarantor. In 2020 while on 08.01.2020 the case was listed, again a prayer was made on behalf of the petitioner for adjourning the case, which was opposed by learned counsel for the respondent-bank and it was submitted that a stay vacating petition has already been filed. On the prayer made on behalf of the petitioner, the case was directed to be listed on 27.01.2020 with indication that no further adjournment shall be granted and if any prayer is made on behalf of the petitioner, the court may propose to pass order on stay vacate petition. Again, on 27.01.2020, despite judicial order for not granting adjournment, the petitioner succeeded to get one day's adjournment and finally on 28.01.2020, Sri Mavidi Rama Rao, learned counsel for the petitioner, argued the case and the Writ Petition was opposed by Smt. V. Dyumani, learned counsel for the respondent-bank.
4. Learned counsel for the petitioner/guarantor has emphasized that since the 1st respondent-bank had initially initiated proceeding for recovery of the loan amount against the borrower, no action was required against the petitioner-guarantor that too in a case where the borrower-2nd respondent herein had already got a stay order from the Debts Recovery Tribunal. At the time of hearing, learned counsel for the petitioner has produced an order, dated 25.11.2019, passed in S.A. No. 468 of 2018 by the Debts Recovery Tribunal-II at Hyderabad to show that petition filed by the borrower-2nd respondent under Section 17 of the SARFAESI Act was partly allowed
