This Writ Petition Is Filed For The ... vs Dyumani
2023 Latest Caselaw 3544 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                 and
  HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
              WRIT PETITION No.1605 of 2023

ORDER: (per D.V.S.S.Somayajulu, J)

       This Writ Petition is filed for the following relief:

          "...to issue a Writ or order or direction more
          particularly one in the nature of Writ of Mandamus
          to declare the action Bank in closing the running
          unit and the business of the petitioners as being
          contrary and in violation of the provisions of the
          Securitization   and   Reconstruction   of   Financial
          Assets and Enforcement of Security Interest Act,
          2002 and the Security Interest (Enforcement) Rules,
          2002 and consequently to set aside the said
          common order dated 17.01.2023 passed in I.A.No.32
          of 2023 (for redelivery of the schedule properties,
          physical possession of which were taken by Bank
          through advocate Commissioner) and I.A.No.33 of
          2023 (Stay of all further proceedings in pursuance of
          the Section 14 proceedings under Crl.M.P.No.158 of
          2022) in SA No.13 of 2013 passed by Hon'ble DRT
          Visakhapatnam and pass such other order or
          further orders as this Hon'ble Court may deems fit.
          and proper under the circumstances of the case."
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      2)   This Court has heard Sri K.Harinarayana, learned

counsel for the petitioners and Smt. V. Dyumani, learned

standing counsel for the respondent Bank.

3) Sri Harinarayana argued the matter at length. It

is his essential contention that the property, which has been

taken possession of is worth far more than the outstanding,

and yet the Bank highhandedly seized all the items of the

property for the recovery of their alleged debt. It is also

submitted that the petitioners are running a Unit engaged in

prawn culture, which is a continuous process, and in the

peak season the respondents have taken over the said unit.

The tank, included in the property seized, is the primary

security of "A" Schedule. According to the learned counsel it

is filled with small prawn seedlings besides the medicines

and feed. This lack of care by the respondents would destroy

the seedlings, destroy the crop and thus hamper the

repayment of the debt due. It is his contention that a

running unit should not be seized in a highhanded manner

like in the present case. He also points out that substantial

sums of money have been paid and the loan outstanding

does not warrant such a drastic measure as taken in this

case. Relying upon the order of the High Court of

Chattisgarh in M/s City Mall Vikash Pvt. Ltd., and others

v Punjab National Bank1, learned counsel argues that the

Bank had a duty to take care and cannot act in highhanded

manner. He points out that Chattisgarh High Court directed

that the secured asset after taking over possession can also

be given to the "present management with a condition that

such person shall take care of the property till the action

under law is finalized".

4) He also relies upon the judgment of the Hon'ble

Supreme Court of India in M/s Godrej Sara Lee Ltd., v The

Excise and Taxation Officer-cum-Assessing Authority &

Ors.,2 to reply to the respondent's argument that the writ is

not maintainable. According to him under such

circumstances, which are present in the case, the Writ is

maintainable. According to him the DRT, Visakhapatnam

has exceeded its jurisdiction while passing the order in

W.P.No.1686 of 2017

Civil Appeal No.5393 of 2010

I.A.No.32 of 2023 and I.A.No.33 of 2023. Therefore, learned

counsel prays for an order.

5) In reply to this Smt. V. Dyumani, learned counsel

argues the matter at length. It is her contention that all the

procedures stipulated under the SARFASI Act have been

scrupulously followed. It is also submitted that the interim

order passed by the DRT can only be challenged before the

DRAT and the Writ is not proper remedy. It is her contention

that even the conditional order passed by this Court was not

complied with. She also argued that the judgment relied

upon by her Lakshmi Shankar Mills (P) Ltd., v The

Authorised Officer, Indian Bank3 is squarely applicable to

the facts and circumstances of the case. She submits that

the petitioners are defaulters and even defaulted in following

this Court's orders. They did not make the payment in line

with this Court's interim order and are now in possession of

the property pursuant to the interim order. Even though the

default clause is included, the petitioners are preventing the

respondent bank from taking possession of the property.

Therefore, it is her contention that writ should be dismissed.

AIR 2008 Mad 181

COURT:

6) After considering the submissions, this Court

notices that the judgment cited by the learned counsel for

the Bank in the case of Lakshmi Shanker Mills (3 supra),

is an order of the Full Bench of Madras High Court, which is

hearing the reference. In paragraph 18 of the said reference

the Madras High Court clearly held that the interim

mandatory injunction cannot be given. It clearly held that

redelivery of the possession of property can only be given by

the Tribunal if it comes to the conclusion that the actions

taken by the secured creditor are not in accordance with the

provisions of the Act. In the second judgment reported in Sri

Manicka Vinayagar Spinning Mills v State Bank of India

and others4 also it was clearly held that until it is decided

by the DRT under Section 17 of the Act that the possession

was taken contrary to the Act or the Rules; an order of

redelivery of the possession cannot be granted. The law on

the subject is also fairly clear. An interim mandatory

injunction is an extraordinary remedy. It is an exception

rather than the norm. In the opinion of this Court it cannot

MANU/TN/1969/2008

be granted in a routine or a regular manner or on the

strength of offer made to pay the money in installments etc.

This Court agrees with the findings of the Full Bench of the

Madras High Court and also the Division Bench of the

Madras High Court. In view of the law on the subject the

interim direction for redelivery of the property cannot be

granted. In the opinion of this Court the DRT did not

commit any error whatsoever in refusing to grant interim

order as prayed for. In fact the option was given to the

petitioners to pay the total amount due and, therefore, this

Court is of the opinion that the prima facie objection raised

by the learned counsel for the petitioners is untenable.

7) Even on the question of law, this Court is of the

opinion that the writ itself is not maintainable. Time and

again the Hon'ble Supreme Court of India has clearly held

that if the petitioner is aggrieved by any of the measures

taken under the Act the only remedy for him is to file an

application before the DRAT and not the writ petition. For

the sake of good order the judgment reported in South

Indian Bank Ltd., v Naveen Mathew Phillips5 is cited.

8) This Court had also granted an interim order on

02.03.2023, with the consent of both the parties. Smt.

Dyumani, on instructions had informed this Court that if the

entire amount due is paid by 31.03.2023 the bank was

willing to give back the possession. Therefore, this Court

passed an interim order considering the submission of the

petitioners with regard to generation of the revenue etc., and

directed that the entire outstanding should be cleared by

30.04.2023. The first installment was Rs.50,00,000/-, of

which Rs.19,00,000/- was already paid. Therefore, the

balance was directed to be paid within 10 days. The

possession directed to be delivered if the same is paid. A

default clause was also included in the order making it clear

that if the amount is not paid as stipulated in the order, the

Bank would be at liberty to take back the possession. The

payment was not made as stated in the order. Therefore, the

default clause has come into operation. It is now stated that

the Writ Petitioners are not redelivered the possession.

2023 SCC OnLine SC 435

9) As this Court is of the opinion that there are no

merits in the writ petition, for the reasons mentioned above

and as the interim order passed by this Court has not been

fulfilled, it is ordered that the respondents are at liberty to

take over possession of the property. They are also permitted

to approach jurisdictional Station House Officer with a copy

of this order, if there is resistance to handing / taking over

the possession. The Station House Officer is also directed to

provide the necessary assistance.

10) With the above observation the Writ Petition is

dismissed. There shall be no order as to costs.

11) Consequently, Miscellaneous Applications

pending, if any, shall also stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J

_________________________________ DUPPALA VENKATA RAMANA, J Date:19.07.2023.

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