M/S. Abinand Grand Hotels And ... vs M/S. Ap State Financial ...
2021 Latest Caselaw 2718 Tel

Citation : 2021 Latest Caselaw 2718 Tel
Judgement Date : 22 September, 2021

Telangana High Court

M/S. Abinand Grand Hotels And ... vs M/S. Ap State Financial ... on 22 September, 2021

Bench: A.Rajasheker Reddy, G Sri Devi

       HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
                         AND
             HON'BLE JUSTICE G.SRI DEVI

              WRIT PETITION No. 4310 of 2020

ORDER:

This writ petition is filed for the following relief;

"... to issue an appropriate writ, order or direction more particularly one in the nature of Writ of mandamus to declare the measures of the respondent under SARFAESI Act in particularly to take physical possession of the immoveable property Plot No.11(Eastern Part), in Sy.No.66/5, admeasuring 500 sq.yds., situated at Mansurabad Village, Saroornagar Mandal, Ranga Reddy District and all the Plot No.11 (western part) in Sy.No.66/5, admeasuring 661 sq. yds., situated at Mansurabad Village, Saroornagar Mandal, Ranga reddy District through the order dated 12.02.2020 made by the Chief Metropolitan Magistrate, Cyberabad in Crl.M.P.No.104/2020 appointing advocate to take physical possession through Advocate Commissioner Warrant pursuance of the Demand Notice dated 13.12.2018, u/s.13(2), thereafter Possession Notice dated 01.03.2019 u/s k13(4) by the 1st respondent as being illegal, erroneous, contrary to the provisions of the SARFAESI Act u/s.13(4) as being illegal, erroneous, contrary to the provisions of the SARFAESI Act and under SIER, 2002 and to quash all the proceedings of the 1st respondent....."

Learned Counsel for petitioner submits that the petitioner

is sub-lessee of the subject property and the respondent bank

without issuing notice to the petitioner, initiated proceedings

under Section 14 of the SARFAESI Act, 2002, and the same is

in violation of the principles of natural justice. He also submits that the petitioner has invested huge amounts for developing

the property.

On the other hand learned Standing Counsel for

respondent Bank submits that the petitioner has already

challenged the possession notice issued under Section 13(4) of

the Act in SA.No.141 of 2019 and on 24.01.2020 the Tribunal

while dismissing the said SA held that the petitioner being

third party to the securitisation proceedings, there is no

obligation on the part of the 1st respondent Corporation to put

it on notice and the said order became final. He also submits

that the sub-lease is after the mortgage in favour of 1st

respondent Corporation and that the Tribunal also held that

there is no consent from the 1st respondent Corporation for

sub-leasing the property, as such, the same is contrary to

Section 65 A of the Transfer of Property Act, 1882, and it does

not bind the 1st respondent Corporation.

The Tribunal in the order dt.24.01.2020 in SA.No.141 of

2019 observed as follows;

"Coming to the sub-lease pressed into service, the said sub-lease indicates that the lease is for a period of nine years and the 2nd respondent seems to have received advance of Rs.20 lakhs. The tenure of lease and receipt of interest-free- deposit are contrary to Section 65A of the Transfer of Property act. The sub-lease being without the consent of the 1st respondent Corporation and being contrary to Section 65 A of Transfer of Property Act, it does not bind the 1st respondent corporation. The applicant being 3rd party to the securitization proceedings, there is no obligation on the part of the 1st respondent Corporation to put on notice to it (applicant). In that view of the matter, I find that the applicant failed to make out any valid ground for quashing the possession notice dated 01.03.2019 issued u/s.13(4) of the Securitisation Act against SA schedule property for recovery of the secured debt and accordingly, SA is liable to be dismissed."

Admittedly, the aforesaid order has become final and as

such, the petitioner cannot agitate the same issue in the

proceedings initiated under Section 14 of the SARFAESI Act.

The said finding of the Tribunal binds the petitioner and

therefore the petitioner is estopped from raising the same

issue.

Though learned counsel for petitioner relies on the

Judgment of this Court in Balaji Centrifugal Castings v. ICICI

Bank Limited [2018 (5) ALD 376] in support of his case, in

view of the finding in SA.No.141/2019, the said Judgment

cannot come to the rescue of the petitioner.

In view of the above we do not find any merit in this writ