Telangana High Court
Smt.K. Prabhavathi, vs Lic Housing Finance Limited on 18 March, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P.No.16587 OF 2019
Between:
Smt. K. Prabhavathi
... Petitioner
And
LIC Housing Finance Limited
... Respondent
JUDGMENT PRONOUNCED ON: 18.03.2024
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : Yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Their Lordships wish to : Yes
see the fair copy of the Judgment?
__________________
SUREPALLI NANDA, J
2
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WP_16587 of 2019
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P.No.16587 OF 2014
% 18.03.2024
Between:
# Smt. K. Prabhavathi
... Petitioner
And
$ LIC Housing Finance Limited
... Respondent
< Gist:
> Head Note:
! Counsel for the Petitioners : Mr.Praveen Kumar Dubey
^ Counsel for Respondents : Mr.Podila Hari Prasad
? Cases Referred:
-
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WP_16587 of 2019
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.16587 OF 2019
ORDER:
Heard Mr.Praveen Kumar Dubey, the learned counsel
appearing on behalf of the petitioner and Mr.Podila Hari
Prasad, learned counsel appearing on behalf of the
respondent.
2. PRAYER:
The petitioner approached the court seeking prayer
as under:
"To issue a Writ, Order or Direction more
particularly one in the Nature of Writ of Mandamus
declaring the action of the Respondent bank in not
receiving the balance sale consideration amount
paid by petitioner, as arbitrary, illegal, unjust and
in violation of the Petitioner's fundamental Rights
guaranteed under Article 300-A of Constitution of
India."
3. PERUSED THE RECORD.
a) The order dated 15.11.2022 passed by the Court in
the present W.P.No.16587 of 2019, is as under:
"No representation for the respondent.
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The petitioner claims to be the absolute owner of house
bearing H.No.4-49-128/11/B, on Plot No.20A/Part (East
Side Portion) admeasuring 106.875 Sq.yards with a plinth
area of 660 sq. feet in Sy.No.125, Kalpana Housing
Society, Quthubullapur Village, Quthubullapur Mandal and
Municipality, Ranga Reddy District, having purchased the
same in Court auction vide sale certificate issued by the
Senior Civil Judge, Medchal, by depositing an amount of
Rs.40,30,000/- towards sale consideration. The sale was
held by public auction on 06.04.2018 and the total sale
consideration was paid by the petitioner to the credit of
EP.No.62 of 2015 in OS No.13 of 2014 and the sale has
been confirmed by the Court.
According to the learned counsel for the petitioner,
even after satisfying the claim of the decree holder in EP
No.62 of 2015, a sum of more than Rs.18,00,000/- is lying
to the credit of EP NO.62 of 2015 and the respondent can
as well approach the Senior Civil Judge, Medchal and
receive the debt amount, allegedly, payable by the
judgment debtor/predecessor-in-title of the petitioner.
As there is no contest from the respondent and
counter is not filed, there shall be interim direction to the
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respondent to receive the balance amount, if any, lying to
the credit of EP No.62 of 2015 on the file of the Senior Civil
Judge, Medchal."
b) The Counter affidavit has been filed by the
Respondent, in particular, paragraph Nos. 2, 3 and 4,
reads as under:
2) I humbly submit that the petition under reply is not
maintainable either in law or on facts of the case. The
Petitioners have invoked the extraordinary writ jurisdiction
of the Hon'ble High Court without availing the alternative
remedy available under Section 17 of the SARFAESI Act,
having been she questioned the action of the Respondent
initiate under SARFAESI Act. Admittedly the Respondent
took the physical possession of subject matter property by
issuing Possession Notice dated 26-10-2018 wherein it has
been clearly mentioned the amount due from borrowers
Mr. Nampally Krishna and Mrs. Nampally Parijata and
issuance of demand notice dated 09-12-2017 by claiming
Rs.17,64,689.64/- as on 09-12-2017 with future interest.
There is no dispute with regard to sanction of loan to
borrowers in the matter and their default in repaying the
same to the Respondent and declaring the account as NPA
to proceed further under SARFAESI Act.
3) It is pertinent to submit that the borrowers
(Mr. Nampally Krishna & Mrs. Nampally Parijata) availed
credit facility of Rs.15,95,000/- under Griha Prakash
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Scheme from Respondent on 30-07-2011 to purchase of
readymade house and the same property is mortgaged by
them by depositing its original Title Deed of Registered
Sale Deed Document No.8189/2011 dated 26-08-2011
including its original link documents with the Respondent in
terms of a security to due repayment of said loan amount.
Accordingly, the borrowers have executed all necessary
loan documents in favour of Respondent. The borrowers
should repay said loan amount to the Respondent in 120
Equated Monthly Installments of Rs.21,211/- per month
but they failed to pay the same as per the terms and
conditions of loan agreement and become defaulters.
Consequently the subject matter loan account of borrowers
was declared as NPA by Respondent and issued Demand
Notice on 09-12-2017 by claiming debt due of
Rs.17,64,689.64 paisa as on 09-12-2017. The said
Demand Notice was served personally on Borrowers. Then
the Respondent proceeded further in taking physical
possession of Property when the borrowers failed to oblige
or pay said demand notice amount to the Respondent.
4) I humbly submit that the Respondent has issued
Possession Notice dated 26-10-2018 to the borrowers and
served personally on Borrowers besides publishing the
same on 02-11-2018 in two leading news papers i.e.
"Business Standard (English)" and "Nava Telangana
(Telugu)" having circulation in territorial jurisdiction of
schedule property while affixing same on the subject
matter property. The same Possession Notice was affixed
on said property. At this point of time, the Petitioner has
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filed the present petition claiming her right over said
property under guise of alleged purchase through public
auction conducted on 06-04-2018 in E.P.No.62/2015 in
O.S.No.13/2014 on the file of the Senior Civil Judge, Ranga
Reddy District at Medchal. Alleged purchase and claim on
said property by the Petitioner is illegal and void as alleged
purchase happened during subsistence of valid mortgage
of said property in favour of Respondent in year 2011.
Manifestly, the equitable mortgage by depositing all
original Title Deeds with link documents of it have been
created by borrowers in favour of Respondent apart of
confirming same by executing all necessary loan
documents in favour of Respondent in the year 2011 and
copies of said original Regd. Sale Deed Doc.No.8189/2011
dated 26-08-2011 and Memorandum of Deposit of Title
Deeds are filed herewith for kind perusal of the Hon'ble
Court. But whereas the alleged claim of title by the
petitioner through alleged purchase is subsequent to the
charge already existing since year 2011 under a mortgage
created by borrowers in favour of Respondent. Thus under
said circumstances of the matter, the alleged purchase of
said property by the Petitioner should be subject to
discharge of said charge under mortgage created by
borrower in favour of Respondent.
c) The reply affidavit has been filed by the petitioner to
the counter filed by the respondent, in particular,
paragraph Nos.4 and 5, reads as under:
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"4. In reply to Para No.3, I humbly submit that the
Possession Notice dated 26-10-2018 issued by Respondent
is not applicable to me, when I am in the possession of the
property and the property in dispute in this Writ petition
was Rightfully and Legally acquired though the Court
Auction held by Principal Senior Civil Judge, Medchal, on
the file of E.P.No.62 of 2015.
5. In reply to Para No.4, the Counter filed by the
Respondent mention that I have filed the present petition
claiming my right over said property under guise of alleged
purchase through public auction conducted on 06-04-2018
in E.P.No.62/2015 in O.S No.13/2014 on the file of the
Principal Senior Civil Judge, Ranga Reddy District at
Medchal. It is totally false to state that the Counsel for
Respondent in his further submission claims that the
alleged purchase and claim on said property by the
Petitioner is illegal and void as alleged purchase happened
during subsistence of valid mortgage of said property in
favour of Respondent in year 2011. Manifestly, the
equitable mortgage by depositing all original Title Deeds
with link documents of it have been created by borrowers
in favour of Respondent apart of confirming same by
executing all necessary loan documents in favour of
Respondent in the year 2011 and copies of said original
Regd. Sale Deed Doc.No.8189/2011 dated 26-08-2011 and
Memorandum of Deposit of Title Deeds are claimed to be
filed for kind perusal of the Hon'ble Court. There exists no
Legal Relationship between the Petitioner and the
Respondent of Borrower or Borrowe. Nor the same has
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been successfully proven by the Respondent or their
counsel towards any legal enforceable debt or liability,
which is pending or even exist till date. The Respondents
are trying to extract money from petitioner by harassing
me and making false claims in this suit, when they do not
have any locus standing."
4. The case of the petitioner as per the averments
made by the petitioner in the affidavit filed by the
petitioner in support of the present writ petition in brief,
are as follows:
The petitioner is the absolute owner of the house bearing
No.4-49-128/11/B, on Plot No.20 A/Part (East Side Portion)
admeasuring 106.875 Square Yards or 89.34 Square meters with
a plinth area of 660 Square feet (RCC), in Survey No.125,
Kalpana Housing Society, situated at Quthubullapur Vilage,
Quthubullapur Mandal and Municipalaity, Ranga Reddy District,
presently Medchal District, Telangana by virtue of sale Certificate
issued by Hon'ble Senior Civil Judge at Medchal by depositing an
amount of Rs.40,30,000/- (Rupees Fourty Lakhs thirty thousand
only) at a sale held by public auction on 06.04.2018 and paid
total sale consideration amount to this Hon'ble Court in
O.S.No.13 of 2014 in E.P.No.62 of 2015 and the sale also had
been confirmed in petitioner's favour by the Court. It is further
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the case of the petitioner that o 26.10.2018, the respondent
approached the petitioner's premises and affixed the notice
stating that an amount of Rs.17,64,689.64 has to be paid to the
respondent within 60 days from the date of the said notice. The
petitioner being one of the successful bidder for the subject
property and having deposited the amount before the Court and
having purchased the subject property after payment of valid
sale consideration and further being in possession of the subject
property since the date of purchase is struggled by the
interference of the respondent herein. The petitioner also
preferred a suit for perpetual injunction vide suit O.S.No.340 of
2018 on the file of the Senior Civil Judge, Medchal, Ranga Reddy
District and the Hon'ble Court granted perpetual injunction in
favour of the petitioner and the same is subsisting as on date. It
is further the specific case of the petitioner that the petitioner is
not a borrower nor the petitioner has taken any loan from the
respondent - LIC Housing Finance Limited and the petitioner
only purchased the subject property through auction conducted
by Principal Senior Civil Judge, Medchal, on the file of E.P.No.62
of 2015 after completing and complying all the formalities of the
auction, the petitioner had been awarded sale certificate issued
by the Principal Senior Civil Judge, Medchal in petitioner's favour
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and thus, petitioner became the absolute owner of the property.
It is further the case of the petitioner that the suit filed by the
petitioner in O.S.No.340 of 2018 on the file of Senior Civil Judge
at Medchal for perpetual injunction was dismissed for default on
16.06.2022. But however that cannot be the ground to deny the
relief as prayed for by the petitioner in the present writ petition.
DISCUSSION AND CONCLUSION:
5. A bare perusal of the material documents filed by the
petitioner in support of present writ petition and in particular the
Paper Publication issued by the Hon'ble Senior Civil Judge,
Medchal Court, Medchal, reads as under:
IN THE COURT OF THE HON'BLE SENIOR CIVIL JUDGE,
MEDCHAL COURT, AT:MEDCHAL
E.P.No.62 OF 2015
IN
O.S.No.13 OF 2014.
Between:
Sri.K.Reddeppa
... Decree-holder
AND
Sri Nampally Krishna & Others
... Judgment-Debtors
Jdr.No.1:- Sri Nampally Krishna, S/o.N.Timmaiah, Aged about 51
Yrs., Occu: Business,
Jdr.No.2:- Sri N.Arun Kumar, S/o. Nampally Krishna, aged about
26 Yrs, Occu: Pvt.Employee.
Both R/o.H.No.4-49-128-11/B, Ward 4, Block 49(v), Kalpana
Society, Chintal, Quthubullapur, R.R.District.
TO WHOMSOEVER IT MAY CONCERN
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Sale proclamation is hereby given to the General Public
that the attached immovable property of above said Jdrs. Will
be sold in the open court by way of open auction by the court
bailiff of the above said court on 28.12.2017 at 10.30 A.M.,
Hon'ble Senior Civil Judge, Medchal Court premises, at Medchal.
All that the house bearing No.H.No.4-49-128-11/B, Ward
4, Block 49(v), Kalpana Society, Chintal, Quthubullapaur,
R.R.District., and Bounded by:- North" 20' wide road, South: Plot
Nos.19 & 19/A, East: Plot No.21, West: Plot No.20A/Part.
The terms and conditions of the sale may be ascertained from
the Bailiff of the Court.
//By order of the Hon'ble Court//
Sd/- SRI.K.GANESH,
Advocate,
Shameerpet, Medchal, Mobile No.8341815177.
6. Taking into consideration the fact that the petitioner
became the owner of the subject property by virtue of the sale
certificate issued by learned Senior Civil Judge at Medchal, upon
the petitioner depositing an amount of Rs.40,30,000/-at a sale
held by public auction on 06.04.2018 and paid the total sale
consideration amount on the file of Court in E.P.No.62 of 2015 in
O.S.No.13 of 2014 and the said sale has been duly confirmed by
the Court and the petitioner after paying the valid sale
consideration is the owner and possessor of the subject property,
this Court opines that the respondent cannot interfere with the
possession of the petitioner's subject property and the action of
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the respondent's bank in not receiving the balance sale
consideration amount by the petitioner is in clear violation of
petitioner's fundamental rights guaranteed under Article 300-A of
the Constitution of India. Admittedly, even as per the averments
made in the counter affidavit filed by the respondent, it is not
the case of the respondent that the petitioner had been a
borrower at any point of time or the petitioner had availed any
credit from the respondent herein. The counter affidavit at para
2 very clearly mentions Mr.Nampally Krishna and Mrs. Nampally
Parijata, who obtained loan by the Respondent - LIC Housing
Finance Limited.
7. In view of the fact as borne on record that the petitioner
purchased the property in question through the auction
conducted by the Principal Senior Civil Judge, Medchal on the file
of E.P.No.62 of 2015 and upon completing and complying with all
the formalities of the auction, the petitioner was awarded the
sale certificate issued by the Principal Senior Civil Judge,
Medchal, in petitioner's favour, and since the subject property
had been rightfully and legally acquired through Court auction
held by Principal Senior Civil Judge, Medchal on the file of
E.P.No.62 of 2015, this Court opines that the respondent is
unnecessarily harassing the petitioner since the possession
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notice admittedly as borne on record indicates the names of
Mr.Nampally Krishna and Mrs. Nampally Parijata, and not the
petitioner herein.
8. A bare perusal of the order dated 15.11.2022 passed in the
present W.P.No.16587 of 2019 clearly indicates that it has been
specifically submitted by the learned counsel for the petitioner
that even after satisfying the claim of the decree-holder in
E.P.No.62 of 2015 a sum of more than Rs.18,00,000/- is lying to
the credit of E.P.No.62 of 2015 and the respondent could
approach the Senior Civil Judge, Medchal and receive the debt
amount allegedly payable by the Judgment debtor/predecessor-
in-title of the petitioner. But however, the respondent failed to
do so and instead is troubling the petitioner, who became the
absolute owner of the subject property by virtue of a sale
certificate issued by the Senior Civil Judge, Medchal by
depositing an amount of Rs.40,30,000/- at a sale held by public
auction on 06.04.2018 and after having paid total consideration
amount to the Court in E.P.No.62 of 2015 in O.S.No.13 of 2014
on the file of Senior Civil Judge Medchal Court at Medchal and in
view of the fact that the subject sale had been confirmed by the
Court itself, this Court opines that the petitioner is entitled for
the relief as prayed for in the present writ petition, since no
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fundamental procedural error had been pointed out which would
vitiate the order of confirmation of sale and issuance of sale
certificate in favour of the petitioner.
9. Accordingly, the writ petition is allowed as prayed
for, directing the respondent bank to receive the balance
sale consideration amount paid by the petitioner, within a
period of two (02) weeks from the date of receipt of a
copy of the order. However, there shall be no order as to
costs.
Miscellaneous petitions, if any, pending in this Writ
Petition, shall stand closed.
________________________
SUREPALLI NANDA,J
Date: 18.03.2024
Note: L.R.Copy to be marked
(B/o) Yvkr
