WP/40727/2014 of M/s Shanmukha Chaitu Agencies, Vs STATE BANK OF INDIA BRANCH MANAGER PRAKASAM DIST. on 30 December 2014

THE HON'BLE SRI JUSTICE K.C.BHANUANDTHE HON’BLE MRS JUSTICE ANIS

WRIT PETITION No.40727 OF 2014

ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

This writ petition is filed seeking to issue a Writ of Mandamusdeclaring the action of the respondent Bank in not releasing the stockslying in the premises under lock and key with the respondent in spite ofits readiness to pay the outstanding loan amount of Rs.6,01,429/-within three months and also readiness to furnish third party surety asbeing illegal and arbitrary, and consequently, to direct the respondentto release the stocks duly handing over the keys in respect of thepremises, which is under lock and key with the respondent.

2. Petitioner availed cash credit facility from the respondent Bankfor running business in paints and hardware in the year 2007 dulymortgaging premises bearing D.No.9-58 situated at Parchur Villageand Mandal, Prakasam District. The petitioner paid some instalmentsand later, committed default in payment of the instalments as agreed. The loan was declared as Non-performing Asset and anotice under Section 13(2) of the Securitization and Reconstruction ofFinancial Assets and Enforcement of Security Interest Act, 2002 (forshort, “the SARFAESI Act”) was issued on 30.09.2013 by therespondent Bank. Later, the respondent issued notice under Section13(4) of the SARFAESI Act and without taking symbolic possession,moved an application vide Crl.M.P.No.134 of 2014 before the Court ofthe learned Chief Judicial Magistrate, Ongole for taking physicalpossession of the property. In pursuance of the order, dated06.08.2014, passed by the Chief Judicial Magistrate under Section 14of the SARFAESI Act, an Advocate Commissioner was appointed andhe took possession of the secured asset and put lock over the existinglock and declared that the possession of the property was handed over to the respondent Bank. The petitioner filed Securitization ApplicationNo.220 of 2014 before the Debts Recovery Tribunal, Visakhapatnamand also filed I.A.Nos.626 and 627 of 2014 for stay and re-delivery ofthe property and the matter is posted to 12.02.2015. The petitionerapproached the respondent Bank and expressed its readiness to paythe said amount if three months’ time is granted to it and also to furnishsufficient surety and requested to release the material worth Rs.10.00lakhs available in the premises, which is under lock and key with therespondent Bank, as the material lying in the premises is perishable innature, but in vain. Hence, the present writ petition.

3. Learned counsel for the petitioner stated that the petitioner isready to pay the entire amount due to the respondent Bank if areasonable time is granted to it.

4. On the other hand, learned Standing Counsel appearing for therespondent Bank opposed the same on the ground that the petitionercannot be permitted to prosecute two parallel proceedings in respect ofthe same cause of action; that the petitioner has already moved aninterlocutory application before the Debts Recovery Tribunal forrestoration of the possession of the secured asset and therefore, thepetitioner can as well prosecute its proceedings before the DebtsRecovery Tribunal and hence, he prays to dismiss the writ petition.

5. There cannot be any dispute that the respondent Bank initiatedthe proceedings under the SARFAESI Act, which is one of the modesfor recovery of the outstanding amount due to the Bank by way of saleof the secured asset. The respondent Bank is interested only torecover the entire amount due. Because the petitioner has invoked thejurisdiction of the Debts Recovery Tribunal concerned under Section17 of the SARFAESI Act, that does not mean that the request of thepetitioner cannot be acceded to, or accepted. Considering the bonafide request of the petitioner, we direct the petitioner to pay 50% of theoutstanding loan amount to the Bank within a period of six (6) weeks

from the date of receipt of a copy of this order and the remaining 50%of the loan amount within a period of six (6) weeks thereafter. Ifanyone of the above conditions is not fulfilled by the petitioner, therespondent Bank is at liberty to proceed further for realisation of theamount due to the Bank in accordance with the provisions of theSARFAESI Act. Registry is directed not to entertain any applicationseeking “Extension of Time” or “For being mentioned” in this regard.

6. With the above direction, the Writ Petition is disposed of. Thereshall be no order as to costs. Miscellaneous Petitions, if any, pendingin this Writ Petition shall stand closed.

______________________

JUSTICE K.C.BHANU

_______________

JUSTICE ANIS

Date: 30.12.2014

AMD

THE HON'BLE SRI JUSTICE K.C.BHANUAND

THE HON’BLE MRS JUSTICE ANIS

WRIT PETITION No.40727 OF 2014

DATE: 30.12.2014

AMD