Boddu Bhupathi Rao vs The Tamilnadu Mercantile Bank ...
2023 Latest Caselaw 2652 AP

      THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

                                             &

             THE HON'BLE SRI JUSTICE V. SRINIVAS

                   Writ Petition No.8352 of 2023

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

1.    Heard        learned             counsel         for     the        petitioner        and

Sri Harinarayana, learned counsel for the respondents.

2. The prayer in the Writ Petition is as follows:

"a) pleased to issue an appropriate Writ order or direction more particularly one in the nature of Writ of Certiorary Mandamus.

b) Declaring the warrant issued to the 2nd respondent/ advocate commissioner dated 22nd February 2023 issued by the Hon'ble Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, Guntur in Crl. M.P.No. 27/2023 for taking physical possession Guntur in Crl.M.P.No. 27/2023 for taking physical possession of the secured asset, as null and void, inoperative against the petitioner as he is not one of the respondents to the warrant and the warrant is issued to take physical possession of the property from the respondents.

c) Granting an order stay to stay the 2nd respondent/advocate commissioner from taking physical possession of the secured asset from the petitioner as per warrant dated 22nd February 2023 in Crl.M.P.No 27/2023 on the file of the Hon'ble Chief Judicial Magistrate-cum- Principal Assistant Sessions Judge, Guntur, in which the name of the petitioner is not appearing as one of the respondents.

d) direct the 2nd respondent/Advocate Commissioner to follow the guidelines of the Hon'ble Chief Judicial Magistrate-cum-Principal Assistant Sessions Judge, Guntur which are given in the warrant dated 22nd February 2023 in Crl.M.P.No. 27/2023 on the file of the Honorable Chief Judicial Magistrate-cum- principal Assistant Sessions Judge, Guntur such as "You are further directed to follow due procedure in execution of the warrant." Which is enshrined in civil and criminal procedure codes and

as per the directions of the Hon'ble Supreme court of India in the Judgment of Standard Cartered Bank and Others V/s V.Noble Kumar and Others in Criminal Appeal No. 1218 of 2013 (arising out of Special leave Petition (Criminal) No. 2038 of 2011) with Criminal Appeal No. 1217 of 2013 (arising out of Special Leave Petition (Criminal) No. 6560 of 2011) decide on 22 August 2013 at Supreme Court of India by The Hon'ble Mr. Justice H.L. Gokhale and The Hon'ble Mr. Justice J. Chelameswar and pass"

3. Both the learned counsels have argued the matter at

length even without a formal counter being filed. Learned counsel

for the petitioner submits that the petitioner is a tenant in the

premises which is the subject matter of an order passed by the

Chief Metropolitan Magistrate under the provisions of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act (for short "SARFAESI Act")

Act. Although the lease deed is not filed, it is averred that the

petitioner has obtained the property on lease for a period of five (5)

years from 05.01.2022. It is also stated that basing on the said

lease, the tenant has approached the Principal Junior Civil Judge,

Guntur, filed I.A.No.66 of 2023 in O.S.No.146 of 2023 and

obtained an injunction order against the landlord from interfering

with the tenants possession.

4. There after, the respondent-Bank has filed an application

under Section 14 of the SARFAESI Act and an Advocate

Commissioner was appointed to take possession of the property.

Against the notice issued by the Advocate Commissioner, the

present writ is filed. Although the learned counsel argued that he

is not aggrieved per se by the order of the learned Chief

Metropolitan Magistrate, the prayers are to the contrary. During

the course of his submission learned counsel relies upon the

Judgment in NKGSB Co-operative Bank Limited Vs. Subir

Chakravarty1 to argue that the Advocate Commissioner cannot

exceed the duties of powers given to him under the warrant. His

submission is since the present writ petitioner is not a party in

the proceedings under Section 14 of the SARFAESI Act and he is

not shown as respondent in the application filed before the Chief

Metropolitan Magistrate, the Advocate Commissioner cannot

execute the warrant against him. It is his contention that by

executing the warrant, the Advocate Commissioner is exceeding

the power granted to him. Therefore, he prays for an order in this

writ.

5. In reply, Sri Harinarayana, learned counsel for the

respondens submits that the petitioner has an efficacious

alternative remedy and that Section 17 (4A) of the SARFAESI Act o

has been introduced in the said Act by which the tenant is also

given a right to approach the Debt Recovery Tribunal to establish

2022 LiveLaw (SC) 212

his rights. He points out that this amendment was introduced

with effect from 01.09.2016. Relying upon the Judgment of the

Hon'ble Supreme Court in the case of Kanaiyalal Lalchand

Sachdev Vs. State of Maharashtra2, learned counsel submits

that there is an effective alternative remedy and the writ is

misconceived.

6. This Court after the considering his submissions has to

agree what is stated by Sri Harinayana, learned counsel for the

respondents. With effect from 01.09.2016, the tenant is also

given certain rights to approach to Debts Recovery Tribunal,

which can examine the facts and the evidence and then decide

whether the actions initiated by the Bank are in accordance with

law or not.

7. It is also clear that the petitioner has not filed a copy of

the lease deed. Leaving that aside, this Court also is of the

opinion that once there is an effective alternative remedy provided

to a tenant also, he cannot approach this Court and seek the

reliefs. The remedy is not only efficacious but it is easily available

to the petitioner also. Whether the Advocate Commissioner

exceeds the jurisdiction or not, is not a matter that can be decided

(2011) 2 SCC 782

in the course of the hearing in this Writ Petition. Admittedly the

Advocate Commissioner is executing the warrant that has been

given to him pursuant to an order of the Court.

8. As far as the Judgment of the Hon'ble Supreme Court

relied upon by the learned counsel for the petitioner in NKGSB

Co-operative Bank Limited (cited supra) is concerned, the

question raised before the Hon'ble Supreme Court in that matter

is clearly visible from Para 1 of the Judgment itself. Wherein their

Lordships are called upon to decide whether it is open to the

Magistrate or the CMM to appoint an Advocate Commissioner and

authorize him or her to take possession of the secured assets and

documents. Since the High Courts differed on an interpretation of

this, the matter was referred to the Hon'ble Supreme Court and it

is finally held that the Magistrate has the power to appoint an

Advocate Commissioner. The question raised in this Writ Petition

is totally different and this Judgment is not therefore relevant for

this case.

9. In view of the recent Judgment of the Hon'ble Supreme

Court South Indian Bank Ltd. Vs. Naveen Mathew Philip3, this

Court reiterates that it does not have the jurisdiction to interfere

2023 SCC OnLine SC 435

in this matter. In the above mentioned Judgment, Supreme

Court clearly commented upon practice of High Courts in

entertaining writs, under Article 226, despite the earlier orders of

the Supreme Court.

10. In view of all that is stated above, the Writ Petition is

dismissed, leaving it open to the petitioner to pursue his remedies

as warranted by law. Nothing is expressed on the merits of the

matter. There shall be no order as to costs.

11. As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

________________________________ JUSTICE D.V.S.S.SOMAYAJULU

________________________ JUSTICE V. SRINIVAS Date: 01.05.2023 ANI

THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU & THE HON'BLE SRI JUSTICE V. SRINIVAS

Writ Petition No.8352 of 2023

Dated: 01.05.2023 ANI