L.Vijaya Laxmi v. Canara Bank, Tuljiguda complex,APHB Building, Moazzamjahi

THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 17382 of 2008 Between: L.Vijaya Laxmi W/o.(Late) L.Srinivas Rao R/o.Flat No.308,Super Apartments, 3-5-780/11/A King Koti, Hyderabad ..... PETITIONER AND Canara Bank, Tuljiguda complex, APHB Building, Moazzamjahi Market, Hyderabad, rep.by its Branch Manager .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ or order essentially in the nature of mandamus declaring the proceedings of the Chief Metropolitan Magistrate in Crl.M.P.No.3803 of 2008 dated 24.7.2008 directing the Advocate Commissioner to taken over the possession of premises of the residential premises flat No.308 in third floor of Super Apartments MCH.No.3-5- illegal, and 780/11/A Buggikhana unconstitutional. ,King Koti, Hyderabad as void being Counsel for the Petitioner:MR.B.VEERABHADRA RAO Counsel for the Respondent No.: The Court made the following : ORDER In this writ petition L.Vijaya Laxmi calls in question the order dated 24.07.2008 passed in Crl.M.P.No.3803 of 2008, on the file of Chief Metropolitan Magistrate, Hyderabad.

The petitioner stood as guarantor for the education loan of his grand daughter namely G.Manikya Madhuri. Since the account became Non Performing Asset, proceedings have been initiated by the respondent under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’). Notice came to be issued to the borrower as well as the guarantors as provided under sub Section (2) of Section 13 of the Act. The petitioner was called upon to hand over the mortgaged property. The petitioner did not comply the said request and consequently, the respondent herein approached the Chief Metropolitan Magistrate by filing application under Section 14 of the Act. The learned Chief Metropolitan Magistrate proceeded to appoint an Advocate Commissioner to take possession of the property and hand over the same to t h e respondent herein by order dated 24.7.2008.

The said order is under challenge in this writ petition. Heard the learned counsel appearing for the petitioner and perused the material placed on record. Learned counsel appearing for the petitioner submits that the petitioner did not receive any notice from the respondent and that the alleged mortgage by the petitioner towards security for the loan availed by her grand daughter is not valid, and various other contentions have been advanced such as charging the interest exorbitantly and not showing the payments made by the borrower. Indisputably the respondent-bank initiated proceedings under the Act. An order under sub Section (4) of Section 13 of the Act came to be passed after allowing 60 days time as provided under sub Section (2) of Section 13 of the Act. These facts have been detailed in paragraph No.4 of the impugned order in the writ petition. Therefore, the contention of the petitioner that he was not put on notice before passing the order under sub Section (4) of Section 13 of the Act cannot be countenanced.