Shaik Mohiuddin vs M/S. City Union Bank Limited
2022 Latest Caselaw 706 Tel

              HON'BLE SRI JUSTICE UJJAL BHUYAN
                             AND
              HON'BLE SMT. JUSTICE P.SREE SUDHA

     WRIT PETITION Nos.19961 OF 2019 AND 3047 OF 2022

                      COMMON             ORDER
                       (per Smt.Justice P.Sree Sudha)


1.    Shaik Mohiuddin, filed Writ Petition No.3047 of 2022 against

City Union Bank Limited and others for issuance of a Writ of

Mandamus declaring the Notice dated 03.01.2022 issued by the

Advocate-Commissioner-fifth respondent herein for taking physical

possession of the schedule property as per the order in R.P.No.482 of

2019 in O.A.No.183 of 2019 dated 21.01.2022, as illegal, arbitrary

and against the provisions of the Securitisation and Reconstruction

of Financial Assets and Enforcement of Security Interest Act, 2002

(for brevity, 'the SARFAESI Act').

2. Earlier, the petitioner in W.P.No.3047 of 2022 had also filed

W.P.No.19961 of 2019 in which respondent Nos.1 to 3 are similar

and respondent No.4 is the Sub-Registrar seeking a Writ of

Mandamus to declare the order in O.A.No.183 of 2019 dated

06.06.2019 passed by the Debts Recovery Tribunal-II, Hyderabad, as

arbitrary and also to declare the order in I.A.No.1114 of 2019 in

O.A.No.183 of 2019 dated 06.03.2019, as illegal and to direct the

Sub-Registrar-fourth respondent to register the sale deed executed by

the third respondent in his favour in respect of the suit schedule

property.

3. The petitioner mainly contended that he entered into an

agreement of sale with Hitesh Ramesh Jain-third respondent on

22.02.2019. As the said property was mortgaged to the R.B.L. Bank

Limited-second respondent herein, he cleared the entire due amount

of Rs.2,01,00,000/- and the bank executed re-conveyance deed on

18.07.2019 vide document No.2392 of 2019 and also issued

No-Objection Certificate and the original link documents. He would

further contend that when they went for registration on 13.07.2019,

they came to know that the first respondent bank obtained ex parte

attachment order on 06.03.2019, and as such, he filed W.P.No.19961

of 2019 and W.P.No.3047 of 2022. He would also state that he is a

third party to the proceedings and the third respondent is not his

relative and there is no collusion between them and thus seek to set

aside the notice dated 03.01.2022 issued for physical possession of

the property by the Advocate-Commissioner.

4. In the counter filed by the City Union Bank Limited-first

respondent in W.P.No.19961 of 2019, it is contended that the

petitioner has not disclosed the date of purchase of the property, not

chosen to file copy of the agreement of contract and not even

disclosed the details of the date of transaction or the amount of

purchase either in the affidavit or in the paper publication and thus,

the question of priorities between the petitioner and the respondents

cannot be resolved. It would further contend that the petitioner is not

a purchaser of the property and has been set up by the third

respondent to defeat the attachment order obtained by the first

respondent on 06.03.2019. It would also contend that they have no

knowledge of mortgage in favour of the second respondent bank.

Even otherwise, the prior mortgage if created validly, it will not debar

any other creditor to seek attachment of the mortgaged property as

per the provisions of the Order XXXVIII Rule 10 CPC. When once the

attachment is subsisting on a property, and it was communicated to

the concerned Sub-Registrar, no prudent purchaser will purchase the

property without verifying the same. Thus, the petitioner will not

have any right over the property. Moreover, he ought to have availed

alternative remedy of filing a claim petition before the Debt Recovery

Tribunal for raising attachment, but without doing so, he straight

away invoked the writ jurisdiction.

5. It would further contend that the Hon'ble Supreme Court in

catena of judgments clearly held that the writ petitions under Article

226 of the Constitution of India shall not be entertained when there

is an effective alternative remedy. In the present case, there are

several disputed questions of facts in relation to the collusion of the

petitioner and the third respondent, genuineness of the alleged

transaction between them and knowledge of the petitioner about the

attachment have to be adjudicated by adducing the evidence before

the competent forum, but not under Article 226.

6. The second respondent-Bank also filed counter affidavit stating

that Hitesh Ramesh Jain, Director of R.E. Cables and Conductors

Pvt. Limited, approached the bank for sanction of credit facility for

business purpose and mortgaged certain properties with them.

When he defaulted in repayment of the loan amount, the second

respondent filed O.A.No.77 of 2021 on the file of the Debts Recovery

Tribunal-II, Hyderabad. The house property bearing Municipal No.

5-9-164, admeasuring 189.43 square yards, situated at Chapel Road,

Abids, Hyderabad, is one of his properties, for which, he approached

the second respondent and repaid Rs.2,01,00,000/- and thus, they

executed a conveyance deed and the second respondent is not a party

to O.A.No.183 of 2019. He came to know about the attachment order

only when the purchaser of Ghatkesar property informed them. The

second respondent alone has the right to deal with the said

properties and no other bank shall have any sort of claim over the

said properties.

7. City Union Bank Limited filed O.A.No.183 of 2019 on

15.02.2019 against several defendants including Hitesh Ramesh

Jain, who is a partner of M/s.Blaze Copper Wires, which is the third

defendant in the said OA, for recovery of a sum of Rs.24,45,25,048/-.

During the pendency of the said OA, the bank filed I.A.No.1114 of

2019 on 06.03.2019 for conditional attachment before judgment, and

on the same day, the Tribunal ordered for attachment and also

issued urgent notice by adjourning the matter to 19.03.2019 for filing

counters/written statements by the defendants. But, the defendants,

in spite of service of summons, remained absent and hence they were

set ex parte on 22.05.2019. Subsequently, the Tribunal disposed of

the main OA by its order dated 06.06.2019. The attachment of the

properties in the said I.A. was made absolute, except Item No.1.

8. The writ petitioner also filed rejoinder to the counter of the first

respondent in which he furnished the details of payment of

Rs.2,01,00,000/- to the bank in page No.3 as follows:

       Sl.         Mode of           Date        Bank         Amount
       No.         payment                                     (Rs.)

       A     Through Cheque                       SBI         1,00,000/-
             bearing
             No.429907
       B     Through Cash        22.02.2019                   1,11,111/-

       C     Through Demand      01.07.2019       SBI        50,00,000/-
             Draft     bearing
             No.279648
       D     Deposited Cash      18.06.2019    M/s.R.B.L.      50,00,000/-
                                              Bank Limited





       E    Deposited cash    11.07.2019       M/s.R.B.L.     50,00,000/-
                                              Bank Limited
       F    As per covering   11.07.2019      M/s.R.B.L.      46,05,000/-
            letter                            Bank Limited
       G    Deposited cash                     M/s.R.B.L.      2,83,889/-
                                              Bank Limited
                                       Total amount ...      2,01,00,000/-

9. In Clause (E) of re-conveyance deed dated 18.07.2019, the

mode of payment is follows:

'E. The Mortgagors have, as on 14-07-2019 paid Rs.4,50,000/-, 18- 06-2019 paid Rs.50,00,000/-, 08-07-2019 paid Rs.50,00,000/-, 11- 07-2019 paid Rs.50,00,000/- and on 12-07-2019 paid Rs.46,50,000/- total amount repaid Rs.2,01,00,000/- (Rupees Two Cores One Lakh Only) towards the monies due/Credit Facilities availed by Mortgagors from the Mortgagee ("Repayment Amount").'

10. The writ petitioner stated that his rights are subsisting prior to

the attachment order dated 06.03.2019. The third respondent

executed receipt on 22.02.2019 and agreement of sale on 24.04.2019

and gave publication on 16.05.2019. He also stated that when he

contacted the third respondent, he came to know that he has taken

appropriate steps for setting aside the ex parte order in O.A.No.183 of

2019. Hitesh Ramesh Jain is also the guarantor in O.A.No.183 of

2019, and as such, as many as 24 properties pertaining to him are

attached. The Item No.1 was deleted because the suits being

O.S.Nos.291 and 338 of 2017 are pending before the trial Courts.

Hitesh Ramesh Jain is one of the defendants in O.A.No.183 of 2019.

In spite of service of summons, he has not appeared before the

Tribunal nor filed counter/written statement on 19.03.2019 and

represented that he entered into an agreement with the writ

petitioner herein and he cleared entire dues to the R.B.L. Bank

Limited and thus, the said property cannot be attached. In fact, he

never approached this Court stating that he executed an agreement

of sale in favour of the writ petitioner, thus, the order of the Tribunal

in respect of attachment of the said property is illegal.

11. No doubt, Hitesh Ramesh Jain vide his letters dated

18.06.2019, 11.07.2019 and 01.06.2019, addressed to the Bank

Manager of R.B.L. Bank Limited, has stated that he entered into an

agreement with Shaik Mohiuddin for sale of mortgaged property

admeasuring 189.43 square yards, situated at Chapel Road, Abids,

Hyderabad, in order to clear the outstanding dues pertaining to their

company in the capacity of a guarantor, he was depositing the

amounts as stated by him in the said letters. Hitesh Ramesh Jain

never stated that the petitioner herein was repaying the amounts on

his behalf and thus, the writ petitioner herein instead of filing the

claim petition for raising the attachment, hastily invoked the writ

jurisdiction when there is an efficacious alternative remedy available

to him. When there are several disputed questions of facts, he is not

entitled for a writ of mandamus under Article 226. Likewise, he is

also not entitled to seek a direction to lift the attachment order

against the first respondent bank and he has to work out his

remedies against his vendor.

12. On perusing the above pleadings, facts and circumstances, this

Court is of the opinion that there is an alternative and efficacious

remedy is available to the petitioner, and in view of the disputed

questions of facts raised by the parties, this Court is of the further

opinion that the present writ petitions are not maintainable and

hence, they are liable to be dismissed, leaving the parties to ventilate

their grievance before the appropriate forum in accordance with law.

13. Accordingly, both the Writ Petitions are dismissed, however

with liberty as above. There shall be no order as to costs.

14. Pending miscellaneous petitions, if any, shall also stand

dismissed in the light of this final judgment.

___________________ UJJAL BHUYAN, J

___________________ P.SREE SUDHA, J

17th FEBRUARY, 2022.

PGS