J. Srinivas v. Union Of India

* I N THE HI GH COURT OF JUDI CATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH * HON'BLE SRI JUSTI CE V.RAMASUBRAMANI AN * THE HON'BLE MS. JUSTI CE J. UMA DEVI + W.P.NO.41122 of 2018 % Date: 15-11-2018 # Betw een:

1. J. Srinivas, S/o. Subbarao, R/o. Devarapalli Village & mandal, West Godavari District.

2. J. Prashanthi, W/o. Srinivas, R/o. Devarapalli Village & Mandal, West Godavari District.

..... Petitioners And

1. Union of India, rep. by its Principal Secretary, Department of Finance, Secretariat, New Delhi.

2. Indian Overseas Bank Asset Recovery Management Branch, Srinitya Complex, Visakhapatnam, rep. by its Authorized Officer.

3. Indian Overseas Bank Eluru, West Godavari District, rep. by its Branch Manager.

.... Respondents ! Counsel for the Petitioner s : Mr. T.V.S. Prabhakar Rao ^ Counsel for Respondent 1 : Mr. K. Lakshman A.S.G.

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? Cases referred

VRS,J & JUD,J.

W.P.No.41122/2018 THE HON'BLE SRI JUSTICE V. RAMASUBRAMANIAN THE HON'BLE MS. JUSTICE J. UMA DEVI WRIT PETITION No.41122 of 2018 ORDER: (Per VRS,J.) Challenging a possession notice issued under Section 13(4) of the SARFAESI Act, 2002, the guarantors have come up with the above writ petition.

2. Heard Mr. T.V.S. Prabhakar Rao, learned counsel for the petitioners.

3. The main ground of attack to the possession notice is that one of the properties covered by the possession notice is an agricultural land and that therefore, under Section 31(i) of the Act, the measures under Section 13(4) cannot be taken.

4. But the question as to whether one of the items is an agricultural land or not, is a question of fact. On this question of fact, the petitioners should invite a finding of fact from the Debts Recovery Tribunal.

5. Though the learned counsel for the petitioners contended that one of the items covered by the impugned possession notice is admittedly an agricultural land, we cannot test it by issuing notice and calling upon the respondent-bank to come on affidavit. Such an action on our part may defeat their right of defense to any proceeding, in a pure and simple question of fact. Therefore, leaving it open to the petitioner to approach on this score, the writ petition is dismissed.

6. As a sequel, pending miscellaneous petitions, if any, shall stand closed.

_____________________________ JUSTICE V. RAMASUBRAMANIAN __________________ JUSTICE J. UMA DEVI 15th November, 2018 Js.

VRS,J & JUD,J.

W.P.No.41122/2018 THE HON'BLE SRI JUSTI CE V. RAMASUBRAMANI AN THE HON'BLE MS. JUSTI CE J. UMA DEVI WRI T PETI TI ON No.20338 of 2018 15th November, 2018 Js.