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Judgment
Heard Mr. Vedula Srinivas, learned Senior counsel appearing on behalf of Ms. Vedula Chitralekha, learned counsel for the petitioners.
This petition has been filed under Article 226 of the Constitution of India aggrieved by the action of the Advocate-Commissioner in forcibly taking over possession of the third and fourth floor of the residential building of the petitioners.
Petitioners before us are husband and wife.
Petitioners had earlier approached this Court against the action taken by the respondent under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (briefly, the ‘SARFAESI Act’ hereinafter) by filing Writ Petition No.9620 of 2022. More precisely, petitioners had approached this Court against the Notice dated 31.01.2022 issued by the Advocate-Commissioner for taking over possession of the schedule property.
This Court, following the decision of the Hon’ble Supreme Court in Phoenix ARC Private Limited vs. Vishwa Bharati Vidya Mandir (2022) SCC Online SC 44, declined to entertain the writ petition inasmuch as the secured creditor, i.e., the respondent No.1 is a private financial institution. While dismissing the said writ petition by order dated 22.02.2022, petitioners were granted liberty to approach the jurisdictional Debts Recovery Tribunal under Section 17 of the SARFAESI Act for redressal of their grievance.
It is stated that following the aforesaid order of this Court, petitioners have filed securitization application before the Debts Recovery Tribunal-II, Hyderabad (Tribunal) under Section 17 of the SARFAESI Act which has been numbered as S.A.(I.R.)No.209 of 2022. Petitioners have also filed interlocutory application for stay.
Learned Senior counsel for the petitioners submits that even now the Tribunal is non-functional as the Presiding Officer has not yet joined.
In the meanwhile, the Advocate-Commissioner, acting on the vacation notice dated 31.01.2022, has dispossessed the petitioners not only from the ground, first floor and second floor but even from the third and fourth floors of the building. This fact is stated in paragraph No.8 of the supporting affidavit which we extract hereunder:
“It is submitted that the Advocate Commissioner has visited the house property of the petitioners on 24.2.2022 along with Police and dispossessed the petitioners from the Ground and First Floor in which they are residing. The building is having Ground + Four Floors and the warrant issued by the CMM is only in respect of Ground + 2 Floors as that alone is under mortgage. The 3rd & 4th Floors of the house is not under mortgage. However, the Advocate Commissioner has taken over possession of the 3rd & 4th Floors also unauthorizedly. Though the petitioners have pleaded for granting some time for making part payment and also have pleaded that the warrant is returnable by 02.03.2022, still the Advocate Commissioner refused to listen to their request and has taken possession of the Ground, First, 3rd & 4th Floors and locked the same. The petitioners, along with their children are thrown on the street in a harsh manner.”
We have carefully perused the vacation notice dated 31.01.2022 wherefrom we find that as per schedule thereto, description of the schedule property reads as under, viz.,
SCHEDULE - A
“All that house no. 05-02 with a plinth area of 1230.0 sq. ft. inf ground floor, 1230.0 sq.ft in first floor, 1230.0 sq.ft in second floor. Thus total plinth area of 3690.0 sq.ft. (R.C.C.) constructed on plot No.1076, admeasuring 200 sq. yards or 167.2 sq.mtr. in survey Nos.167/P, 168, 169/P, 176/P, 177 and 178/P of Lahari Estates, situated at Village Bachupaly, Gram Panchayat, Pragati Nagar, Mandal: Bachupally, Medchal-Malkajgiri District, Telangana, Sub-Dist.Quthbullapur, Dist. & Regn. Dist. Medchal – Malkajgiri and bounded by:
North: 30 feet wide road
East : Plot No.1075
South: Plot No.1059
West : Plot No.1077”
From the above, it is evident that petitioners were required to vacate the schedule property only in respect of ground floor, first floor and second floor. If the Advocate-Commissioner has dispossessed the petitioners from the third and fourth floor of the schedule property, that would be traversing beyond the vacation notice dated 31.01.2022 which is based on the warrant issued by the Chief Metropolitan Magistrate, at L.B. Nagar, Hyderabad dated 2.12.2021.
In the circumstances, we direct that respondent shall restore possession of the petitioners in respect of third and fourth floors of the schedule property, if forcibly taken over by it through the Advocate-Commissioner. This exercise shall be done immediately on receipt of a copy of this Order.
Insofar other aspects are concerned, since the petitioners have already filed securitization application before the Tribunal, those will be addressed by the Tribunal in the aforesaid proceeding.
This disposes of the Writ Petition. No order as to costs.
As a sequel, miscellaneous applications pending if any in this Writ Petition, shall stand closed.