M/S. RAJ RAJESHWARI GENERAL MERCHANTS Vs. THE DEPUTY COMMISSIONER AND DISTRICT MAGISTRATE, OFFICE OF THE DEPUTY COMMISSIONER, THE TAHASILDAR TALUK OFFICE AND STATE BANK OF HYDERABAD

JUDGEMENT

(1.) PETITIONER availed loan from respondent No. 3 on equitable mortgage by deposit of title deeds of immovable property & became a defaulter Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the Act) and filed application before the 1st respondent under S. 14 of the Act for taking possession of the secured assets. 1st respondent allowed the said application and directed the Tahsildar to take possession of the mortgaged property. Questioning the order passed under S. 14 of the Act, these writ petitions have been filed to quash the said order. Learned Government Advocate contended that the writ petitions are not maintainable since petitioner has statutory and adequate remedy under S. 17 of the Act, which has not been exhausted. Reliance was placed on the decision in the case of KANAIYALAL LALCHAND SACHDEV & ORS. Vs. STATE OF MAHARASHTRA & ORS. - : 2011(1) SUPREME 655 and also a Judgment dated 16.02.2012 passed in W.A. 10188/2011.

(2.) PERUSED the writ petition record. The grievance of the petitioner is that the action of the 1st respondent authorising the Tahsildar to take possession of the secured asset, shown in Annexure -K is unauthorised and illegal. The contention has no merit, in view of the Judgment dated 16.02.2012 passed in W.A. 10188/2011, wherein, it has been held as follows:

(3.) IN the case of KANAIYALAL (supra), it has been held that, ordinarily, relief under Articles 226 /227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. In the said case, Bank had advanced loan to appellant No. 6 on equitable mortgage by deposit of title deeds of certain property. Appellants 1 to 5 were personal guarantors to the said loan. On default in the matter of repayment of loan amount, a notice under the Act was issued and appellants were dispossessed of the secured property. A writ petition was filed contending that the notice issued was illegal and no action could be taken in pursuance thereof and if at all, respondent wanted to take any action, it was required to approach the Chief Metropolitan Magistrate, under S. 14 of the Act. Thereupon, notice was withdrawn without prejudice to the right to take action in accordance with law. Consequently, writ petition was dismissed. Thereafter, an application was made under S. 14 of the Act for taking possession of the secured asset, before the Chief Metropolitan Magistrate, who allowed the application and directed the Assistant Registrar to take possession of the mortgaged property after issuing notice to the appellants. A writ petition filed thereafter, was dismissed on the ground of availability of alternative remedy under S. 17 of the Act. Upon examination of the provisions of Ss. 13, 14 and 17 of the Act and the decision in the case of AUTHORISED OFFICER, INDIAN OVERSEAS BANK Vs. ASHOK SAW MILL - : (2009) 8 SCC 366, it was held as follows: