Miriyam Malyadri vs Union Bank Of India,
2023 Latest Caselaw 4413 AP

    THE HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                         &
 THE HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA
Writ Petition Nos.19998, 20180, 20395 and 20630 of 2023

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


        Heard learned for the petitioners and learned counsel

for the respondents.

2. These four writ petitions are filed by the petitioners to

claim to be agreement of sale holders and also who have

filed suits for Specific Performance. The properties

mentioned in these four writ petitions, in which, the

petitioners claim some right are mortgaged to the 1st

respondent-Bank. In W.P.Nos.19998, 20180 and 20630 of

2023, the primary borrower is a firm called Amrutha

Traders. In W.P.No.20395 of 2023, the primary borrower is

Haripriya traders. The unofficial respondents are common.

The writ petitioners in 3 cases claim to have an agreement

of sale and some claim to have approached the Courts for

Specific Performance. In W.P.No.20395 of 2023 the

petitioner is a lease holder. The petitioners in

W.P.Nos.20180 and 20630 of 2023 claim to have interim

orders in their favour granted by the respective Courts.

3. Therefore, when a publication was made for sale of

the property under the provisions of SARFAESI Act, the

petitioners approached this Court. It is also stated that all

the petitioners are willing to pay the reserve price that has

been fixed for the same, but the 1st respondent -Bank is

not accepting the said request. Therefore, the writ petitions

have been filed.

4. In reply, Sri B.Hanumanth Rao, learned counsel

appearing for the respondents submits all the four

agreements of sale are created for the purpose of litigation.

It is his contention that the Bank has a charge over the

property and security interest was created in favour of the

Bank. It is also stated that at the time of loan being

sanctioned, the mortgage deed being executed, due

diligence was considered and there was no sign of any

property agreed to be sold. It is also reiterated at more than

one place that the borrower in collusion with his

acquaintances has created the scenarios and fake

documents.

5. There is no dispute seriously about the fact that the

bank has to be paid and that there is a debt outstanding. Whether the agreements on which the petitioners have

relied are valid agreements or sham agreements, is not a

matter that can be decided by this Court particularly while

exercising the jurisdiction under Article 226 of the

Constitution of India. It is also settled law that the

agreement of sale does not confer any rights on the party.

Therefore, whether a mandamus is maintainable at the

instance of an agreement of sale holder whose rights are

not crystallized into a decree etc., is a debatable issue.

6. However, in view of the recent judgments of the

Hon'ble Supreme Court of India including the Judgment

reported in South Indian Bank ltd. v. Naveen Mathew

Philip1 this Court is of the opinion that writ petition under

Article 226 of the Constitution of India is not a remedy. In

the opinion of this Court if any of the actions taken by the

1st respondent-Bank are contrary to the statute, petitioners

will have to pursue their statutory remedies. The comment

of the Hon'ble Supreme court that they are constrained to

take judicial notice of the fact that High Courts continue to

interfere in such matters is leaving this Court with no

2023 SCC Online SC 435 option but to hold, the petitioners have wrongly

approached this Court. Whether, they have superior right

to the interest of the bank and/or the auction purchasers

is not a matter that can be decided in the course of this

writ petition.

7. Therefore, these writ petitions are dismissed, leaving

it open to the writ petitioners to pursue their remedy before

appropriate and proper forum. As far as the payment of

money and other offer made by the writ petitioners is

concerned the law is also settled with reference to

redemption of the property. There shall be no order as to

costs.

As a sequel, Miscellaneous Applications, if any,

pending shall also stand dismissed.

_______________________________ JUSTICE D.V.S.S.SOMAYAJULU

_______________________________________ JUSTICE DUPPALA VENKATA RAMANA Date: 21.09.2023.

AG/KGR

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

Writ Petition Nos.19998, 20180, 20395 and 20630 of 2023

Dated: 21.09.2023 AG/KGR