Batchu Satyanarayana vs Union Bank Of India
2023 Latest Caselaw 2914 AP

                                       1




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

                 WRIT PETITION No.8908 of 2023

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

        This Writ Petition is filed seeking a mandamus

declaring      the     order,      dated      10.02.2023,    passed     in

Crl.M.P.No.59 of 2023 by the Chief Judicial magistrate,

Rajamahendravaram, as ultra vires etc.

        2)    This Court has heard Sri V.V.Satish, learned

counsel for the petitioner and Smt. U.Dyumani, learned

standing counsel for the respondent-bank.

3) The essential ground urged by the writ petitioner

is that the impugned order passed under Section 14 of

Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002, on 10.02.2023 is

incorrect. Learned counsel for the petitioner contends that

the Chief Judicial Magistrate did not record the satisfaction

that the possession notice was served on the petitioner. It is

stated that the order is passed mechanically. Learned

counsel points out that notice, dated 03.04.2021, is

mentioned in the list of documents but no postal

acknowledgement etc., is filed. It is his contention that no

notice was actually served and that this important factor was

overlooked by the learned Magistrate.

4) In reply to the point urged by the learned standing

counsel for the respondent-bank about the writ being

entertained, learned counsel relies upon the judgments

Standard Chartered Bank v V. Nobel Kumar and Others1

and Authorised Officer, Indian Bank v D. Visalakshi and

Another2 in support of his contentions.

5) In reply Smt. Dyumani, learned standing counsel

submits that a perusal of the affidavit filed before the

Magistrate shows that requisite details were furnished and

thereafter the Magistrate noted that there is a prima facie case

which shows that the petitioner is a secured creditor, that the

debt is a secured debt and it can be termed as a non-

performing asset etc. She also submits that the enquiry that

is carried on in such a case is not an enquiry testing the

merits of the matter, but is a satisfaction to be recorded in

order to take the assistance of the State for the purpose of

(2013) 9 SCC 620

(2019) 20 SCC 47

fulfilling the provisions of the Act. She also has filed a Memo

and argued the matter. In the memo, a notice, dated

03.04.2021, is included along with copies of the

acknowledgments served. Therefore, she submits that there

is service of notice. Lastly, she submits that the petitioner

has an alternative remedy to approach the DRT also.

6) It is a fact that the bank did not mention in the list

of documents about the "postal acknowledgments". However,

there is a specific averment in the affidavit that the notice,

dated 03.04.2021, was duly served on the respondents.

Learned Magistrate also recorded her prima facie findings. In

the judgment of V. Noble Kumar case (1 supra) itself the

Hon'ble Supreme Court of India clearly held that the

satisfaction required to be recorded by the Magistrate was

only about the factual correctness of the assertions and not

the legal niceties of the transaction. Similarly, in Indian

Bank case (2 supra) also it is clearly held that the enquiry

contemplated is sui generis enquiry and is essentially an

enquiry on the verification of the affidavit and is not an

enquiry resulting any adjudication of the inter se rights.

7) Therefore, this Court is of the opinion that the

mere fact that the postal acknowledgement card and its

details are not mentioned in the list of documents etc., is not

a ground for this Court to interfere. As per the settled law

once the possession of the property is taken the petitioner has

an alternative remedy of approaching the DRT against any of

the measures taken by the bank. In the long line of

judgments culminated in a recent judgment i.e., South

Indian Bank Ltd., and others v Naveen Mathew Philip

and Another3 it was held that the Writ Court should rarely

interfere and entertain writs under Article 226 of the

Constitution. The Supreme court of India clearly held in this

latest judgment that it is the tribunal alone which has

jurisdiction to decide about the alleged violation of the

statutory conditions.

8) In that view of the matter, this court is of the

opinion that there are no merits in the Writ Petition.

Accordingly, the Writ Petition is dismissed.

2023 SCC OnLine SC 435

9) Consequently, the Miscellaneous Applications

pending, if any, shall also stand dismissed.

_________________________________ JUSTICE D.V.S.S.SOMAYAJULU

_______________________ JUSTICE V.SRINIVAS Date:05.05.2023 Ssv