N. RAM GOPAL Vs. INDUSLND BANK

JUDGEMENT

(1.) This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner, seeking the following prayer:

(2.) Heard Sri S.Satyam Reddy, learned Senior Counsel appearing for Smt.K.V.Rajashree, learned counsel for the petitioner, Sri Prabhakar Peri, learned counsel for respondent No.1-bank and perused the record. Inspite of service of notice on respondent Nos.2 to 4, there is no representation on their behalf till date.

(3.) The learned Senior Counsel appearing for the petitioner would submit that the petitioner's father is the original owner and possessor of the subject property i.e, residential house bearing Nos.17-1-388/6/B and 17-1-388/6/B/1 consisting of Ground, First and Second Floor, admeasuring 300 Sq.Yards or equivalent to 252 sq.mtrs, situated at Laxmi Nagar, Saidabad, Hyderabad, Telangana, having purchased the same from one Sri E. Shanker Rao, under registered sale deed dated 18.06.1982, vide document No.2070/1982 registered in the office of Sub-Registrar, Azampura, Hyderabad. The petitioner's father gifted the subject property in favour of the petitioner under registered gift deed dated 31.05.1983 vide document No.1856/1983. Thereafter, the petitioner to meet his financial and business necessities, approached the respondent No.2 for arranging hand loan of Rs.80,00,000/- and the respondent No.2 promised to lend the said amount but insisted the petitioner to transfer the subject property temporarily in his name. The petitioner believed the respondent No.2 and executed a registered sale deed dated 26.08.2016 in favour of the respondent No.2 vide document No.4351/2016 registered in the office of Sub-Registrar, Banjara Hills, Hyderabad. Though the sale consideration mentioned in the sale deed was Rs.1,16,70,000/-, the respondent No.2 paid only Rs.45,00,000/-. It is contended that some of the cheques issued by the respondent No.2 were dishnoured. Subsequently, the petitioner got to know that the respondent No.2 has created equitable mortgage of the subject property by depositing title deeds with the respondent No.1-bank. Then the petitioner got issued legal notice dated 14.02.2017 to respondent No.2 calling upon the respondent No.2 to take back the amount paid by him and re-transfer the subject property in his name. The petitioner lodged a complaint with the Station House Officer (S.H.O.), Saidabad Police Station, Hyderabad, on 11.01.2018 but no action has been taken by the police. The private complaint lodged by the petitioner culminated into registration of Crime No.65/2018 dated 22.02.2018 by the S.H.O, Saidabad Police Station, Hyderabad. As the things stand, the respondent No.1 issued a notice dated 07.07.2018 through registered post on 17.07.2018 to the petitioner. On verification of the said notice, it was found that the said notice was addressed to respondent No.2 and others and it relates to taking of possession of the subject property under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act') in terms of demand notice dated 29.01.2018, wherein the respondent No.2 and others were called upon to pay Rs.1,46,23,880.46/-. Challenging the possession notice dated 07.07.2018, the petitioner filed S.A.No.330 of 2018 before the Debts Recovery Tribunal-II, Hyderabad. The said S.A was dismissed for default and the petitioner filed restoration petition and the same is pending. It is submitted that the petitioner also filed a civil suit in O.S.No.150 of 2019 before the X Additional Chief Judge, City Civil Court, at Hyderabad, against the respondent No.2 and respondent No.1- bank, seeking cancellation of the sale deed dated 26.08.2016 bearing document No.4351/2016 and consequential declaration of title and perpetual injunction and the same is pending. It is contended that on 24.09.2019, Mr.Narsi Reddy, Manager of respondent No.1-bank, along with four other unsocial elements, came to subject property around 11:00 AM and tried to break open the locks. At that time, as the petitioner was out of station, his granddaughter's husband Dr.Vamshaj Raja, lodged the complaint in Saidabad Police Station. On 29.10.2019, the respondent No.1- bank has filed Crl.M.P.No.183 of 2019 before the Chief Metropolitan Magistrate, Nampally Criminal Courts, at Hyderabad, under Section 14 of the SARFAESI Act. In the said Crl.M.P.No.183 of 2019, the petitioner filed Crl.M.P.No.3570 of 2019 seeking to reject the petition i.e, Crl.M.P.No.183 of 2019 filed by the respondent No.1- bank. The learned Chief Metropolitan Magistrate, Nampally Criminal Courts, at Hyderabad, erroneously dismissed the Crl.M.P.No.3570 of 2019 vide order dated 24.01.2020. Aggrieved by the same, the petitioner filed Writ Petition No.2200 of 2020 before this Court and the same was dismissed by a Division Bench of this Court vide order dated 04.02.2020. Seeking to review the said order, the petitioner filed Review I.A.No.3 of 2020 in W.P.No.2200 of 2020 and the same is pending. While-so, the learned Chief Metropolitan Magistrate, Nampally Criminal Courts, at Hyderabad, allowed the Crl.M.P.No.183 of 2019 vide impugned order dated 10.03.2020 and appointed Advocate Commissioner to take physical possession of the subject property and to hand over the same to the respondent No.1-bank under a cover of panchanama, which is erroneous. The learned Senior Counsel relied upon the decision rendered by a Division Bench of this Court in G.Tuhin Kumar vs. State Bank of India rep. by its Chairman and Managing Director, Mumbai and others , 2020 3 ALT 322 and contended that the facts and circumstances of the instant case are similar to the said decision. In terms of the said decision, the petitioner is entitled to retain the subject property by paying the entire outstanding amount to the respondent No.1-bank and ultimately prayed to allow the writ petition as prayed for.