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2020 Supreme(AP) 236
IN THE HIGH COURT OF ANDHRA PRADESH
RAKESH KUMAR, D.RAMESH, JJ.
Garre Durgamba – Appellant
Versus
The Recovery Officer – I – Respondent
Writ Petition No.13205 of 2019
Decided on : 18-03-2020
Advocate Appeared:
For the Appellant : Ch Srinivasa Raju
For the Respondent: S.Raja Sekhar Kashyap
Point of Law: when a statutory remedy is available, one may not be allowed to invoke the writ jurisdiction.
Headnote:
Constitution of India, Article 226 – Recovery of Loan – petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India to call for the records, on the file of the Debt Recovery Tribunal, Visakhapatnam, and declare that the orders as illegal, against principles of natural justice and consequently, set aside all proceedings against the petitioner’s property, i.e., all that the land admeasuring 205.75 sq. yards and building in the premises including the auction proceedings –Held, there is no merit in the writ petition nor the petitioner was entitled to directly approach this Court by way of invoking the writ jurisdiction. Such interference by the High Court has been deprecated by the Hon’ble Supreme Court. Against the impugned order, which was passed by the Recovery Officer, as per Section 30 of the Recovery of Debts and Bankruptcy Act, 1993, there was provision of appeal. The petitioner by way of bypassing the appellate jurisdiction had directly approached this Court and on this ground itself, at the very inception, the writ petition was required to be rejected. However, in this case, earlier, an interim order was granted in favour of the petitioner and on the strength of the interim order, the writ petition was kept pending here. The writ petition neither has got any merit nor was required to be entertained on the ground of statutory remedy available to the petitioner - Writ Petition stands dismissed
Facts of the Case:
writ petitioner, aged about 82 years as mentioned in the writ petition, and the mother of the borrower, who has been arrayed as respondent no.3, has succeeded in preventing the respondent no.2-Bank from recovering the outstanding loan for about ten years, even though the account was declared NPA long back and thereafter, O.A.no.232 of 2011 was filed by the Bank before the Debt Recovery Tribunal
Finding of the court:
there is no merit in the writ petition nor the petitioner was entitled to directly approach this Court by way of invoking the writ jurisdiction. Such interference by the High Court has been deprecated by the Hon’ble Supreme Court. Against the impugned order, which was passed by the Recovery Officer, as per Section 30 of the Recovery of Debts and Bankruptcy Act, 1993, there was provision of appeal. The petitioner by way of bypassing the appellate jurisdiction had directly approached this Court and on this ground itself, at the very inception, the writ petition was required to be rejected. However, in this case, earlier, an interim order was granted in favour of the petitioner and on the strength of the interim order, the writ petition was kept pending here. The writ petition neither has got any merit nor was required to be entertained on the ground of statutory remedy available to the petitioner.
Result: Writ Petition stands dismissed
ORDER :
Rakesh Kumar, J.
The writ petitioner, aged about 82 years as mentioned in the writ petition, and the mother of the borrower, who has been arrayed as respondent no.3, has succeeded in preventing the respondent no.2-Bank from recovering the outstanding loan for about ten years, even though the account was declared NPA long back and thereafter, O.A.no.232 of 2011 was filed by the Bank before the Debt Recovery Tribunal, Visakhapatnam.
2. The petitioner has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India to call for the records in R.P.No.23 of 2016 in O.A.No.232 of 2011, on the file of the Debt Recovery Tribunal, Visakhapatnam, and declare that the orders, dated 27.8.2019, passed in I.A.No.5 of 2019 in R.P.No.23 of 2016 in O.A.No.232 of 2011 as illegal, against principles of natural justice and consequently, set aside all proceedings against the petitioner’s property, i.e., all that the land admeasuring 205.75 sq. yards and building in the premises bearing H.No.9-3-75/A, near Nehru Statue, Brahmin Street, Kothapeta, Vijayawada, (hereinafter referred to as the ‘schedule property’) including the auction proceedings, dated 30.08.2019.
3. In the writ petition, the petitioner has claimed that she is the rightful owner and occupant of the schedule property. It has further been stated that she had raised serious objections on the recovery proceedings against the schedule property initiated by respondent No.1 in I.A.No.5 of 2019 in R.P.No.23 of 2016 in O.A.No.232 of 2011, questioning the auction proceedings scheduled on 30.08.2019. The 1st respondent, without even referring to any of the issues raised in the said application dismissed the objection petition of the petitioner, vide orders, dated 27.08.2019. Such orders passed by the respondent no.1 are blatant error on facts and law, without jurisdiction, illegal and invalid. As the petitioner is in advanced age and in distress having exhausted all other remedies and as there is no other remedy, she had approached this Court by way of the present writ petition.
4. It has been submitted that originally, the schedule property belonged to one Jaggupilla Bullemma, which was purchased by her father, Jaggupilla Reddemma, vide sale deed, dated 19.12.1952, registered as document no.2605 of 1952. Her father, Jaggupilla Reddamma, died on 06.06.1972 leaving behind the mother of the petitioner, late Mrs. Venkayamma, and the petitioner. It is further submitted that the mother of the petitioner, Mrs. Venkayamma, and the petitioner being the successors for the estate of the father of the petitioner, late Jaggupilla Reddamma, while jointly enjoying the schedule property, settled in favour of the minor son of the petitioner, that is, respondent no.3 herein, vide settlement deed, dated 21.07.1972, registered document no.2746 of 1972 of the SRO, Vijayawada. However, they specifically reserved their rights over the same by mentioning that the settlee is entitled only for the residual left over after the life time of her mother and the petitioner. After her mother’s demise, she became the owner of the schedule property and enjoying it. It was claimed that in view of the settlement, she is having exclusive rights over the schedule property, to hold the same and enjoy the same during her lifetime and the respondent no.3 (her son) was entitled only after her to the extent of left over. She claimed that the respondent No.3 is not competent to create any charge/mortgage by depositing the title deeds to deal with the property in any manner. She also claimed that she was abandoned by respondent no.3 since August, 2007. She was staying separately and managing her expenses from rental income from the schedule property. According to the petitioner, the respondent no.2 bank officials, on 04.09.2010, initiated recovery proceedings under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to
