MATURI SUKANYA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This writ petition is filed seeking a writ of Mandamus to declare the action of the. respondent bank in taking possession of third floor of House No.11-40-129, Assessment No.8158, Block No.1, Municipal Ward No.11/2. situated at Pulipati Vari Street, 1 Town, Vijayawada, of the first petitioner, which is not mortgaged by the first petitioner with the respondent bank, pursuant to the Possession Notice, dated 4-6-2009, as illegal and arbitrary.

(2.) The respondent bank sanctioned mortgaged loan facility of Rs.15,00,000/- on 26-9-2001 to the first petitioner for running a shop under the name and style M/s. Ramesh Fancy Stores and she deposited the title deeds in respect of the property i.e., second floor of the said house. Since the first petitioner failed to pay the instalments, the loan account was classified as non- performing asset and the total outstanding amount comes to Rs.16,55,991/-. The respondent bank filed O.A. No.87 of 2004. In the meanwhile, a demand notice, dated 23-11-2007, was issued by the respondent bank under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act') demanding the first petitioner to repay the entire due amount within 60 days. As she could not repay the loan amount, the respondent bank issued a notice, dated 21-7-2008, under Section 13 (4) of the Act. Thereafter, on 7-2-2008, the respondent bank has taken symbolic possession of the mortgaged property i.e., second floor of the said house. Subsequently, the possession of the third floor of the said house was also taken by the respondent bank. The respondent bank, in the counter affidavit in l.A. No.47 of 2008 in OA. No.87 of 2004, stated that only the second floor of the said house was mortgaged. The grievance of the first petitioner is that the respondent bank has taken possession of the third floor of the said house which was not at all mortgaged, while obtaining the loan.

(3.) A counter affidavit has been filed by the respondent bank, inter alia stating that the first petitioner created equitable mortgage by deposit of title deed in respect of the second and third floors of the said house. A notice under Section 13 (2) of the Act was issued on 23-11-2007 demanding a sum of Rs.16,55,991/- along with interest from 30-4-2004 till realization. As the loan amount was not paid, a possession notice was issued on 21-7-2008 and the same was affixed on the property in question. After issuance of the possession notice, symbolic possession was taken. It is stated that the third floor was an integral part of the second floor.