Heard Learned Counsel For The vs Standing Counsel For
2023 Latest Caselaw 3271 AP

      THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                          &
     THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA


                Writ petition No. 6243 of 2023

ORDER: (per Sri Justice D.V.S.S.Somayajulu)

      Heard learned counsel for the petitioner and learned

Standing counsel for respondent-Bank.

2. The prayer of the writ petitioner is as follows:

"pleased to issue an appropriate writ or order or direction, more particularly one in the nature of writ of Mandamus, declaring the action of the respondent conduct a public auction on 24.02.2023 without following the mandate provision under Rule 8 sub rule 5 Security Interest Enforcement Rules 2002 is illegal, null and void set aside the same, consequently directed to the Respondent No.2 i.e., Hon'ble Tribunal to dispose of SA 102 of 2023 and pass"

3. The essential grievance expressed by Sri Metta Chendra

Sekhar, learned counsel for the petitioner is that, Rule 8(5) of

the Security Interest Enforcement Rules, 2002 was not

followed or complied with. It is his contention that the said

rule is mandatory and that the bank did not follow the same.

He relies upon the market value certificate obtained by the

petitioner along with the copy of a valuation report annexed

to the writ petition and contends that the value of the property is more than 8.3 crores. According to him if the

value of machinery is added, the total value of property would

be even more. He points out that the reserve price fixed for

the property is Rs. 3,60,00,000/-. Therefore, questioning the

proposed sale, the writ petition is filed.

4. Learned counsel for petitioner answered the query by

the Court about the maintainability of the writ petition.

Learned counsel submits that in Vasu P Shetty v. Hotel

Vandana Palace and others1 the Hon'ble Supreme Court

held that provision of Rule 8(5) is mandatory and if the same

is not followed, the letter and spirit, the sale can be set aside.

He relies upon the para-25 of the said judgment. As there is a

violation of a statutory rule the writ is maintainable. Another

grievance expressed by learned counsel for the petitioner is

that even though the SA is filed before the DRT,

Visakhapatnam, the Presiding Officer merely ordered notice

and did not grant any interim order nor did he consider the

submissions made on merits.

5. In reply to this, learned counsel for the respondents Sri

Raj Kumar argues at length. He points out that the present

(2014) 5 SCC 660 petitioner had earlier filed another writ petitioner bearing

No.4468 of 2023, and the same auction notice was

questioned in this writ petition. In addition, a point was also

raised there in about the failure of the DRT to entertain the

interlocutory application. He draws the attention of this

Court to the order and points out that learned counsel for the

petitioner made a confession before this Court that the

borrower would pay a certain sum of money to show their

bona fides. Basing on the same, the Court disposed of the

writ petition directing the petitioner to pay the amount in two

installments. Learned counsel for the respondents states that

it is not complied with.

6. A direction was already issued to the Presiding Officer

of DRT in the same order to consider the stay petition and

dispose of the same on merits. It is stated that, as the

condition agreed upon and recorded in the Hon'ble Court's

order was not followed, the bank went ahead with the auction

and completed the same. He raises an objection about the

very maintainability of the writ petition in view of the earlier

writ petition and pendency of the case before the DRT and also the general law on the subject as declared by the Hon'ble

Supreme Court.

7. In answer to the submissions made by Sri Metta

Chendrashekar is he relies upon para 25 of the judgment of

the Hon'ble Supreme Court in Vasu's case .

8. This Court after considering the submissions notices

that, the very same grounds that are now being urged, are

being urged before the DRT, Visakhapatnam also. In matters

of this nature, where the valuation of the property is

questioned, the manner and the method of valuation is a

matter of pleading and proof for which evidence may also be

necessary before the court can come to a conclusion that the

valuation is correct or not. The allegation of collusion is also

urged but the same is not adequately pleaded. Nevertheless,

this court is of the opinion that the issues of this nature

cannot be decided in a summery proceeding particularly

under Article 226 of the Constitution of India.

9. Apart from that, the person who seeks mandamus

should disclose that he has a right to seek the order and that

there is a failure on the part of the respondent in discharging

the duty. No such case is made out. In the opinion of this court the conduct of the petitioners disentitles the petitioner

from seeking any relief what so ever from this court. In

addition, this court notices that the writ petitioner had

already approached this court and made a promise that 50%

of amount would be deposited within time frame noted by

this court in W.P.No. 4468 of 2023. The auction was stayed

on the ground as the petitioner made a promise to pay the

amounts. Admittedly the petitioner did not pay the amount

as agreed by him and as recorded by the Court. In the very

same order it was clearly mentioned that in case of

petitioner's failure the respondent can take out further

proceedings of the auction. Granting any order to the

contrary would be amounting to varying the said order was

passed in the earlier Writ Petition. This would amount to

reviewing and modifying the earlier order passed by this court

in an independent proceeding this is not permissible in law.

10. This Court notices that the order was passed by the

Hon'ble Supreme Court in Vasu P. Shettys case (1) Supra

in an appeal against DRT application and not in an original

writ proceeding. After considering the facts and evidence the

Hon'ble Supreme Court came to the conclusions. This court is not in possession of in such evidence or other facts to look

into the said issue.

11. As far as the prayer of the learned counsel for the

petitioner for an early disposal of the matter before the DRT,

Visakhapatnam, this court is of the opinion that the matter

was disposed earlier by the division bench and there is

already a direction recorded to consider the stay petition of

the petitioner and to dispose of the same on merits not later

than four (04) weeks from the date of receipt of copy of this

order. With the hope that the Presiding Officer of DRT would

follow the same, this Writ Petition is dismissed. No costs.

As a sequel, Miscellaneous Applications, if any, pending

shall also stand dismissed.

________________________________ JUSTICE D.V.S.S.SOMAYAJULU

_______________________________________ JUSTICE DUPPALA VENKATA RAMANA

Date: 03.07.2023 Note: CC by 05.07.2023 B/o.

AG/DSB

THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU & THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

Writ petition No.6243 of 2023

Dated: 03.07.2023 AG/DSB