Dudala Srinivas vs The State Bank Of India
2023 Latest Caselaw 5101 AP

Citation : 2023 Latest Caselaw 5101 AP
Judgement Date : 18 October, 2023

Andhra Pradesh High Court - Amravati

Dudala Srinivas vs The State Bank Of India on 18 October, 2023

    THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
                         &
 THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA


                WRIT PETITION NO.27579 of 2023

ORDER: (per Hon'ble Sri Justice Ravi Nath Tilhari)


       Heard Sri G. Tuhin Kumar, learned counsel for the

petitioner.

2.     This    writ    petition     under     Article   226    of     the

Constitution of India has been filed for the following relief:-


              "It is therefore prayed that this Hon'ble Court may
        be pleased to issue a writ, Order or orders of directions
        more particularly one in the nature of Writ of Mandamus
        declaring the impugned e-auction notice dated 06.10.2023
        issued by the respondent bank for sale/auction on

18.10.2023 in respect of the petitioner's vehicles, ScodaSlavia (reg No. 30223 AP 2333 J) and Mahindra Thar (reg No. AP 39 SS 3335) as illegal, arbitrary, unconstitutional and contrary to RBI guidelines apart from violative of Article 14 and 21 of Constitution of India and consequently set-aside the e-auction notice dated 06.10.2023 issued by the respondent bank for sale/auction on 18.10.2023 in respect of the petitioner's vehicles, ScodaSlavia (reg No. 30223 AP 2333 J) and Mahindra Thar (reg No. AP 39 SS 3335) and pass."

3. Learned counsel for the petitioner submits that the

petitioner is the borrower from respondent No.1-State

Bank of India. As agreed, the monthly instalments were

being paid towards the payment of the loan but due to the

reason that the petitioner was implicated in criminal case

and was confined in jail, some instalments were not paid

and during in that period, respondent No.1-Bank forcibly

took the petitioner's vehicles i.e., one car Scoda Slavia, 1.5

Tsi AT 2023 model with registration No.TO 223 AP 2333 J

and the other car Mahindra Thar LXD AT 4WD 4SHT 2023

Model, with registration No. AP 39 SS 3335. Now the Bank

has proceeded for sale thereof, through auction for which

today's date i.e., 18.10.2023 is fixed. He submits that any

notice under Section 13(2) of SARFAESI Act was not given.

Though the said fact is not mentioned in the affidavit but

by referring to the documents annexed including the sale

notice, he submits that there is no reference of any notice

given to petitioner under Section 13(2) of SARFAESI Act

and consequently the proceedings for auction are not

referable to the SARFAESI Act.

4. He further submits that the procedure adopted by the

Bank is in violation of the judgment of the Hon'ble Apex

Court in the case of ICICI Bank Ltd., v. Prakash Kaur1,

in which, the Hon'ble Apex Court deprecated the practice

and procedure adopted by the Bank in removing the

(2007) 2 SCC 711

vehicle from the possession of the person through recovery

agents, who are musclemen. He submits that the Bank

should resort to procedure recognised by law to take

possession of vehicles in cases where the borrower may

have committed default in payment of the instalments

instead of taking resort to strong-arm tactics. He referred

to para 16 of ICICI Bank Ltd. case (cited supra) as

under:

"16. Before we part with this matter, we wish to make it clear that we do not appreciate the procedure adopted by the Bank in removing the vehicle from the possession of the writ petitioner. The practice of hiring recovery agents, who are musclemen, is deprecated and needs to be discouraged. The Bank should resort to procedure recognised by law to take possession of vehicles in cases where the borrower may have committed default in payment of the instalments instead of taking resort to strong-arm tactics."

5. Learned counsel for the petitioner further submits

that the petitioner is ready to pay the entire outstanding

amount due to the Bank within a period of six weeks.

6. We are of the view that, since, the petitioner is ready

to make the payment of the entire loan amount as

outstanding, he may approach the Bank for payment

thereof, upon which, the respondent Bank considering the

same and shall take appropriate decision preferably in one

week upon so proceeding. If the auction proceedings have

not taken place, the same shall not be conducted till the

decision is taken by the Bank as aforesaid. But if it has

already been conducted, the same shall abide by the result