Ramesh Ranganathan, J. - (1.) The relief sought for in W.P.No.12375 of 2017 is to quash the order of the Debts Recovery Tribunal-II, Hyderabad (the "DRT" for short) in S.A.No.1097 of 2017 (Old S.A.No.394 of 2015 on the file of the Debts Recovery Tribunal-I, Hyderabad) dated 28.03.2017, as arbitrary and unconstitutional. The petitioner herein filed S.A.No.1097 of 2017 before the DRT under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the "SARFAESI Act" for short) assailing the action of the respondent-bank in taking physical possession of the schedule property through the AdvocateCommissioner appointed in Crl.M.P.Nos.4984 to 4989 of 2015 passed by the Chief Metropolitan Magistrate, Hyderabad, vide Warrant dated 07.08.2015, in pursuance of the possession notice dated 05.09.2014, as arbitrary and illegal.
(2.) The case of the applicant as noted by the DRT, in the order impugned in W.P. No.12375 of 2017, is that they had availed various credit facilities from the respondent-bank from 2003 onwards, against security by way of mortgage of the schedule properties; because of bifurcation of the combined State of Andhra Pradesh, and due to recession in the markets, they had sustained losses in their business, and could not pay the loan instalments; a demand notice dated 31.10.2013 was issued under Section 13(2) of the SARFAESI Act calling upon the petitioner to pay Rs.7,64,99,271.42 ps. within 60 days; they filed their objections on 23.12.2014; the respondent-bank failed to reply thereto, and had thereby violated Section 13(3A) of the SARFAESI Act; contrary to the demand notice dated 31.10.2013, the respondent-bank published another demand notice dated 13.12.2013 in the newspapers on 14.12.2013; the possession notice dated 05.09.2014, under Section 13(4) of the SARFAESI Act, was published in the newspapers on 10.09.2014 showing the outstanding amount as Rs.109 crores by amalgamating the loans taken by M/s.Bhagyanagar Hotels Private Limited, and the financial facilities obtained by the petitioner from other banks i.e., the Bank of India and Punjab National Bank; the applicant did not give their consent for the liabilities of other banks to be clubbed; and the amounts shown in the demand notice, and the amounts shown in the possession notice, were different.
(3.) In its order dated 28.03.2017, the DRT held that the applicant had filed S.A.No.632 of 2014 (new S.A.No.237 of 2017) questioning the possession notice dated 05.09.2014 issued by the respondent-bank under Section 13(4) of the SARFAESI Act; the said S.A. was dismissed by a separate order; the validity of the possession notice issued under Section 13(4) could not be the subject matter of the present S.A; the cause of action for the applicant to file the present S.A. was the warrant dated 07.08.2015 issued by the Chief Metropolitan Magistrate, Hyderabad whereunder the Advocate-Commissioner had been appointed to take physical possession of the schedule properties; the applicant and M/s. Bhagyanagar Hotels Private Limited had questioned the possession notice issued by the respondent-bank in W.P.No.27281 of 2014 which ended in dismissal, leaving it open to the petitioners to avail other remedies under law; W.P.No.14761 of 2015 filed by M/s. Chiran Fort Club, claiming leasehold rights over the schedule properties, was dismissed as withdrawn on 03.06.2015; the Crl.M.P. filed by M/s.Chiran Fort Club, against the possession notice issued under Section 14 of the SARFAESI Act, ended in dismissal on 10.07.2015; W.P.No.22080 of 2015 filed by M/s.Chiran Fort Club thereagainst was dismissed as withdrawn on 16.07.2015; the objection taken by the applicant, regarding delivery of possession of the schedule properties to the respondent-bank on the ground that the tenant was in occupation, was not available as the tenant had filed a Writ Petition before the High Court which had ended in dismissal; the other objection that Syndicate Bank could not take-up proceedings under Section 14 of the SARFAESI Act on behalf of the other banks, i.e. Bank of India and Punjab National Bank, could not be countenanced for the reason that the said banks had authorised the respondent-bank to take measures under Section 13(4) of the SARFAESI Act; the error in mentioning the actual amounts due in the Crl.M.P, filed by the respondent-bank under Section 14 of the SARFAESI Act before the Chief Metropolitan Magistrate, Hyderabad ("CMM" for short), did not affect the impugned order since the C.M.M. does not adjudicate the quantum of the amounts due to the secured creditor; issuance of directions to the Advocate-Commissioner, to take physical possession of the secured asset, was consequent upon dismissal of the objection petition filed by M/s.Chiran Fort Club which was also unsuccessful in W.P. No.22080 of 2015; and the application was liable to be dismissed.;