WP/38953/2013 of Neelarn Dalia, Vs State Bank of India Battala Bazar, on 31 December 2013

THE HON’BLE Ms. JUSTICE G.ROHINIAnd

THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY

WRIT PETITION No.38953 OF 2013

Dated: 31.12.2013

Between:

Neelam Dalia and 3 others

.. Petitioners

And

State Bank of India, Battala Bazar,Warangal Branch and 3 others

.. Respondents

THE HON’BLE Ms. JUSTICE G.ROHINIAndTHE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY

WRIT PETITION No.38953 OF 2013

ORDER:(Per Hon’ble Ms. Justice G.Rohini)

This Writ Petition is filed with the following prayer:

“to issue a Writ of Mandamus or any other suitableWrit or Order declaring the action of the respondent No. 1 innot applying for discharge of amount due under Cash CreditLoan A/c No. 30033316468 by Respondent No.2 firmdeposited by Writ Petitioner No.1 to the credit of O.P.No.538of 2013 on the file of Principal District Judge, Warangal anddeposit all the title deeds and documents in its possessionand subrogate the mortgage in respect of Cash Credit LoanAccount No.30033316468 with the respondent No.1 branch infavour of Writ Petitioner No.1 as arbitrary, illegal and violativeof Principles of Natural Justice affecting right to life and shelterunder A.14,19 and 21 of Constitution of India andconsequently direct the respondent No.1 to withdraw theamount of Rs.1,97,60,702/- by handing over the title deeds ofall secured assets to Writ Petitioner and drop all proceedingsinitiated under Securitization & Reconstruction of FinancialAssets and Enforcement of Security Interest Act, 2002”

It is pleaded in the writ petition that the respondent No.2 is aregistered partnership firm and the petitioners 2 and 3 and therespondents 3 and 4 are the partners of the said firm. It is furtherpleaded that the respondent No.2 firm availed a cash credit facilityfrom the respondent No.1 Bank by depositing title deeds of certainimmovable properties towards security. It is stated that the petitionerNo.1 is the wife of the petitioner No.3 and the property mortgaged tothe first respondent Bank included their residential house.

It appears that the first respondent Bank initiated proceedingsunder the Securitisation and Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002 (for short “the SARFAESIAct”) for recovery of the amounts due from the respondent No.2 firmand the demand notice under Section 13(2) of the Act was issuedaccording to which Rs.1,97,00,398/- was due. Subsequently thepossession notice under Section 13(4) was also published on24.03.2013. At that stage the petitioner No.1 filed O.P. No.538/2013 inthe Court of the Principal District Judge, Warnagal, under Section 83read with Section 91(a) of the Transfer of Property Act seeking thefollowing reliefs:

(a) Allow the petitioner to deposit in the Court to theaccount of this case Rs.1,97,00,398/- (Rupees one croreninety seven lakhs three hundred and ninety eight only)in respect of mortgage by deposit of title deeds byrespondent No.2 in favour of respondent No.1,account of this case Rs.1,97,00,398/- (Rupees one croreninety seven lakhs three hundred and ninety eight only)in respect of mortgage by deposit of title deeds byrespondent No.2 in favour of respondent No.1, (b)

Cause written notice to the respondent No.1 of thedeposit of Rs.1,97,00,398/- (Rupees one crore ninetyseven lakhs three hundred and ninety eight only),seven lakhs three hundred and ninety eight only),

(c) That the Court on the respondent No.1 expressing itswillingness to accept the money deposited herein, in fulldischarge of the mortgage amount and on depositing inthe Court the title deeds and all documents relating toCC Limit A/c No.30033316468, deliver the saiddocuments to the petitioner,willingness to accept the money deposited herein, in fulldischarge of the mortgage amount and on depositing inthe Court the title deeds and all documents relating toCC Limit A/c No.30033316468, deliver the saiddocuments to the petitioner, (d)Grant such other relief or reliefs as are deemed fit in thecircumstances of the case. circumstances of the case.

It is stated that with the permission of the Court the petitionerNo.1 deposited Rs.1,98,66,000/- to the credit of O.P.No.523/2013 andthe first respondent Bank which was impleaded as first respondent tothe said O.P. was very well aware of the said fact.

Admittedly O.P. No.538/2013 was ultimately dismissed as notmaintainable by order dated 10.12.2013 in view of Section 35 of theSARFAESI Act.

It is pleaded in the writ petition that the amount deposited to thecredit of O.P. No.538/2013 is still in deposit in the Court and since thesame satisfies the amounts due to the first respondent Bank under theloan account, the first respondent Bank is not entitled to withhold thetitle deeds of the mortgaged property. Alleging that without takingsteps to withdraw the amount in deposit to the credit of O.P.No.538/2013 the first respondent Bank is trying to dispossess thepetitioner No.1 from the residential house under the provisions of theSARFAESI Act this Writ Petition is filed contending that the said actionis arbitrary and illegal.

Having heard the learned counsel for the petitioners and thefirst respondent Bank, we do not find merit in any of the contentionsraised by the petitioners.

As rightly held by the learned Principal District Judge,Warangal, O.P. No.538/2013 is not maintainable in view of Section 35of the SARFAESI Act and therefore the mere fact that the petitionerNo.1 had deposited the loan amount to the credit of O.P.No.538/2013and that the said amount is lying in deposit in the said Court does notdisentitle the first respondent Bank to proceed further under theprovisions of the SARFAESI Act.

The Writ Petition itself is misconceived and we are not inclinedto entertain the same.

Accordingly, the Writ Petition is dismissed. However, this shallnot preclude the petitioners to pursue the other remedies, if any,available under law for redressal of their grievance. No costs.

Consequently, Miscellaneous Petitions, if any, pending in thisWrit Petition shall stand closed.

______________

G.ROHINI, J

Date: 31.12.2013Ivd

_________________________

T.SUNIL CHOWDARY, J