W.P No. 19091 of 2007 · Andhra Pradesh High Court

aside the demand notice, dated 03.07.2007, issued by the first respondent.

The brief facts of the case are that the petitioner is the owner and possessor of the flat bearing No.2 having separate municipal No.2-1-494/2 on ground floor with a built up area of 1280 sq. feet including common area together with undivided land of 20 square yards out of 400 square yards in the complex, known as ‘Godavari Nivas’ constructed in the premises bearing No.2-1-494, situated at Nallakunta, Hyderabad, by virtue of the registered sale deed, dated 06.05.2003, executed by the third respondent in his favour. The petitioner obtained loan from I.D.B.I Limited, by mortgaging the said flat, payable by him in equal monthly instalments. While so, the first respondent-Vijaya Bank issued notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’), to the second respondent and two others as the second respondent is shown as borrower of the said Bank, wherein he mortgaged the house bearing Nos.2-1-494 to 496 cellar and ground floor admeasuring 2500 square feet. He states that his vendor i.e., third respondent and one of his brothers have executed the sale deed in favour of the second respondent in the month of September, 2003 i.e., after the third respondent executed the sale deed dated 06.05.2003, as per which, the petitioner is the lawful owner of the property in question, but the first respondent without proper physical verification and link documents, sanctioned the loan in favour of the second respondent. Hence, he filed the present writ petition.

The first respondent filed counter-affidavit stating that the petitioner in collusion with the third respondent had fraudulently obtained the loan by creating the sale deed, dated 06.05.2003, in his favour and that based on the request of the second respondent and the documents produced by him, it sanctioned a loan of Rs.23.00 lakhs on 24.09.2003 in favour of the second respondent. It is further stated that the petitioner is apparently a conspirator in creation of sale deed in his favour as the portion of the ground floor is occupied by the third respondent and that the petitioner without filing an application under Section 17 of the Act before the Debts Recovery Tribunal, approached this Court by way of present writ petition, which is liable to be dismissed.

Heard the learned counsel for the petitioner, learned Standing Counsel for the first respondent and Sri V. Raghunath, learned counsel for the second respondent.

The notice under Section 13(2) of the Act was issued to the second respondent and two others since the second respondent mortgaged the property in question in favour of the first respondent Bank and that as there was no reply from them, the first respondent has proceeded further under Section 13(4) of the Act. Since the petitioner and the second respondent had mortgaged the property in question with I.D.B.I Limited and the first respondent Bank respectively, the question to be decided is that who is the owner of the said property. However, this Court cannot decide such disputed question of fact under Article 226 of the Constitution of India. If the petitioner is so aggrieved of the ownership of the property in question, he can approach appropriate forum for redressal of the same.

Hence, the Writ Petition is devoid of any merit and accordingly, dismissed. No order as to costs. ______________________ GHULAM MOHAMMED, J _________________ G. CHANDRAIAH, J Date:15.06.2010