HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.35285 OF 2014 Date: 20.11.2014 Between :
Sri Mohd.Iqbal Ahmed, S/o. Ismail, Aged about 50 years, Occu: Business, R/o. H.NO.3-10-46, Rahmania Street, Raichur Road, Mahaboobnagar.
….. Petitioner And State Bank of India, rep.by its Manager, Mahabubnagar Branch, Mahabubnagar district.
….. Respondent This Court made the following:-
HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.35285 OF 2014 ORDER:
Petitioner borrowed the loan from the respondent-Bank. When the petitioner defaulted in payment of loan due, respondent- bank instituted O.S.No.07 of 2000 on the file of District Judge at Mahabubnagar. The preliminary decree was passed on 05.02.2004 and final decree was passed on 17.12.2009, which decree has become final. As petitioner failed to comply with the decree passed, respondent-bank filed E.P.No.66 of 2010. Since even during the pendency of the E.P., the amount was not paid, proceedings are taken to conduct sale of the property mortgaged. Accordingly, sale notice was published in Eenadu Daily Newspaper dated 02.11.2014, proposing to conduct sale on 21.11.2014. At this stage, this Writ Petition is instituted contending that the E.P., proceedings are not maintainable before the District Court at Mahabubnagar in view of the provisions contained in Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ( for short, ‘Act, 1993’).
2. As seen from the material enclosed to the writ affidavit, the decree passed by the District Court has become final as no challenge is made to the said decree. Even petitioner has not taken further steps after institution of the Execution Petition. The only ground raised by the petitioner in the writ petition is that the proceedings in E.P., are not maintainable in view of the provision contained in Act, 1993 on the ground that the value now claimed in the E.P., is more than Rs.10,00,000/- lakhs, whereas Civil Court has jurisdiction upto Rs.10,00,000/-.
3. As seen from the record, the original liability of the petitioner was approximately Rs.6,00,000/- when the suit was instituted in the year 2000 and the suit was decreed accordingly. The amount disclosed in the E.P., is inclusive of the principal amount and interest accrued thereon by the time the E.P. is instituted. Therefore, prima facie, it cannot be said that the District Court, Mahabubnagar has no jurisdiction to entertain the E.P. Be that as it may, whether there is inherent lack of jurisdiction to the District Court in entertaining the E.P., and ordering for conducting of sale of property to realize the decretal amount cannot be raised in the writ petition filed under Article 226 of the Constitution of India. The petitioner ought to have availed the common law remedy. Therefore, the writ petition is not maintainable. Accordingly, the writ petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions if any pending in this writ petition shall stand closed.
JUSTICE P.NAVEEN RAO Date: 20.11.2014 Kkm HON’BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.35285 OF 2014 Date: 20.11.2014 Kkm