Andhra Pradesh High Court - Amravati
B.V.Poornanda Babu And Anothers vs State Of Ap. Rep By Its Prl.Secretary And ... on 18 June, 2024
1
*HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+WRIT PETITION No.35348 of 2015
Between:
# B.V. Poornachandra Babu, S/o. Satyanarayana
... Petitioner
And
$ State of Andhra Pradesh, rep. by its Principal Secretary
Home (Genera.B/A2) Department,
Secretariat Buildings at Hyderabad and 2 others.
.... Respondents
JUDGMENT PRONOUNCED ON 18.06.2024
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
- Yes -
2. Whether the copies of judgment may be marked to Law
Reporters/Journals
- Yes -
3. Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment?
- Yes -
___________________________________
DR.JUSTICE K. MANMADHA RAO
2
* THE HON'BLE DR.JUSTICE K. MANMADHA RAO
+WRIT PETITION No.35348 of 2015
% 18.06.2024
Between:
# B.V. Poornachandra Babu, S/o. Satyanarayana
... Petitioner
And
$ State of Andhra Pradesh, rep. by its Principal Secretary
Home (Genera.B/A2) Department,
Secretariat Buildings at Hyderabad and 2 others.
.... Respondents
! Counsel for the Petitioner : Sri V.S.R. Anjaneyulu
Counsel for Respondents: Smt. Y.L.Siva Kalpana Reddy, SC for CBCID
G.P for home
<Gist :
>Head Note:
? Cases referred:
1. 2003 (6) ALD 834 (DB)
2. 2024 LAwSuit(Ker) 115
3. 2004(3) KLJ 336
4. 2004(3) SCC 711
5. (2004) 2 SCC 711
3
APHC010208002015
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3310]
(Special Original Jurisdiction)
TUESDAY ,THE EIGHTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE DR JUSTICE K MANMADHA RAO
WRIT PETITION NO: 35348/2015
Between:
B.v.poornanda Babu And Anothers ...PETITIONER
AND
State Of Ap Rep By Its Prl Secretary And 2 Others and ...RESPONDENT(S)
Others
Counsel for the Petitioner:
1. V S R ANJANEYALU
Counsel for the Respondent(S):
1. GP FOR HOME (AP)
2. Y L SIVA KALPANA REDDY
The Court made the following:
ORDER :
This writ petition is filed under Article 226 of the Constitution of India, for the following relief:
4
"....to issue an appropriate writ order or direction particularly one in the nature of writ of Mandamus directing the respondent Nos 1 and 2 to delete the properties mentioned at Sl Nos 8 and 32 of the Annexure to G O Ms No 70 I Lome Gencral B/A2 Department dated 3 4 2014 from attachment or in the alternative to recognize the petitioner as preferential secured creditors of the respondent No 3 declaring their action as illegal and ultra vircs to the provisions of Articles 14 and 300A of the Constitution of India besides directing not to proceed further and pass such other order or orders...."
2. The grievance of the petitioner is that the 3rd respondent styled himself as the absolute owner of Sri Manikanta Residency-III (SIMS Vihar) has executed three agreements of sale dated 28.7.2012 in favour of the petitioner. Having come to know that he was cheated by the management of 3rd respondent including its Managing Director Sri K.Surendra Babu , has issued a legal notice dated 22.2.2013 to the 3rd respondent and its Managing Director calling upon to discharge the liability under the respective agreements of sale styled Khararu Nama Oppudala Patram and return the amounts forthwith. In fact, immediately after execution of the respective agreements of sale and before issuance of the legal notice, when the petitioner questioned the Managing Director of the 3rd respondent, who in-turn, has issued three post dated cheques for a total sum of Rs.39 lakhs, on ICICI Bank, Visakhapatnam. It is further stated that the petitioner along with his father has filed a suit in OS No.88 of 2013 on the file learned VIII Additional District Judge, Visakhapatnam on 22.03.2013 for recovery of amount with subsequent interest thereon along with IA No.325 of 2013 seeking for attachment before judgment of the properties shown in the schedule attached to I.A. Accordingly, the learned trial Judge after considering the material on record, 5 has directed attachment of properties. It is further stated that the 2 nd respondent through his letter in C.No.2747/C-13/CID/2013, dated 31.8.2013 sent a proposal to the 1st respondent seeking ad-interim orders of attachment of certain properties held in the name of 3rd respondent in Crime NO.63 of 2013 under Sections 406, 420 and Section 5 of A.P Act 17/99 and Sections 4, 5 and 6 r/w Section 2© of the Prize Chits and Money Circulation Schemes (Banning) Act 1978 of IV Town Police Station, Visakhapatnam and Crime No.66 of 2013 under Sections 406, 420 IPC and Section 5 of A.P Act 17/99 and Sections 4, 5, 6 r/w 2© of Prize Chits and Money Circulation Schemes (Banning) Act 1978 of Gajuwaka Police Station were registered. The 1st respondent issued G.O.Ms.No.70 Home (General .B/A2) Department dated 3.4.2014 in exercise of the powers conferred under Section 3 of the Act passed an ad-interim direction of attachment, attaching the properties of the 3rd respondent and the Chief Managing Director Sri K. Surendra Babu @ Surendra Gupta, pending further action by the competent authority in accordance with the provisions of the said Act. Hence, the present writ petition.
3. Counter affidavit has been filed by the 2nd respondent. While denying al the allegations made in the petition, it is contended that the properties mentioned at Sl.No.32 of the Annexure G.O.Ms.No.70 Home (General.B/A2) Department, dated 3.4.2014 sold by the petitioner herein on 28.07.2012 to one Kodidasu Jaggaiah, S/o Sri Ramulu, R/o Tatichetlapalem, Visakhapatnam who was one of the accused in Cr.No.63/2012 and 66/2013 under Sections 6 406, 420 IPC and Sec A.P Protection of Depositors and Financial Establishment Act (APPDFE) 1999 and Sections 4, 5 and 6 r/w 2(c ) of Prize and Chit Money Circulation Scheme Banning Act 1978 on the file of IV Town Police Station and Gajuwaka Police Station, Visakhapatnam City. Subsequently, both the criminal cases are entrusted to the CID Department for further investigation. It is further stated that with regard to filing of the suit in OS No.88 of 2013 on the file of VIII Additional District Judge, Visakhapatnam against the 3rd respondent herein with regard to recover of a sum of Rs.47,11,200/- along with subsequent interest and the trial Court by order dated 13.3.2013 in IA No.325/2013 in OS No.88/2013 passed order against the 3rd respondent to furnish security for the said amount of Rs.47,11,200/- within a period of 48 hours from the date of receipt of notice, failing which attach the petition schedule property. Therefore, this respondent police have nothing to do with the said order. Sl.No.32 in the said GO got registered the name of Kodidasu Jaggarao, but not on the 3rd respondent.
4. Additional counter affidavit has also been filed by the 2 nd respondent while reiterating the averments in the counter, contended that the competent authority under the Depositors Act, to protect the depositors attached the property of the financial establishment and there is no possibility of knowing about the attachment of third property over the financial establishment properties, so with strict adherence to the Depositors Act the G.O.Ms.No.70 dated 3.4.2014 issued by the 1st respondent and further the writ petitioners not approached the special Court to protect his rights over the property attached 7 in the civil suit. It is further stated that those who are watchful and careful of using their rights are entitled to the benefits of the law, but the petitioner herein is not vigilant about his rights, which is the appropriate Court to decide his claim over the property attached before judgment in the suit OS No.88of 2013 and further though the counter was filed in the year 2015 by the 2nd respondent, the petitioner not taken any steps for disposal of the writ petition nor approached the special Court so the relief sought for by the petitioner was exhausted on the ground that GOMs No.70 got merged with the judicial order vide Crl.M.P.No.2083 of 2015 dated 30.8.2017 hence the writ petition is liable to be dismissed.
5. Heard Sri V.S.R. Anjaneyulu, learned Senior Counsel appearing for the petitioner; Ms. Y.L.Siva Kalpana Reddy, learned Standing Counsel for CBCID and learned Assistant Government Pleader for Home appearing for the respondents.
6. On hearing, learned Senior Counsel for the petitioner while reiterating the averments made in the petition, contended that the petitioner was absolute owner and possessor of Ac.3.84 cents in Sy.Nos.45/1 to 13 and 45/17 to 23 Revidi (V) Padmanabham Mandal, Visakhapatnam District, having purchased vide sale deed from Sri D.Srinivas and others for a valuable consideration. Later, the Petitioner sold the said land vide sale deed (D.No.2421/2012 SF Bheemunipatnam) to the Respondent No.3 for Rs.83,03,000/- (amount of Rs.60,00,000/- part of sale consideration was only paid. Rest of Rs.23,03,000/- was not paid. He further submits that the Respondent No.3 8 styled himself as the absolute owner of S Manikanta Residency-III (SIMS Vihar) executed (3) agreement of sale in favour of the Petitioner. B2, B3 and B4 were purchased for a total consideration of Rs.90 lakhs (Rs.30 lakhs each). Vide Agreements of Sale, Rs.15 lakhs (each) were paid for Flat Nos. B3 & B4 and Rs.9 lakhs was paid for Flat No.B2. The Petitioner having detected that he was cheated by the Respondent No.3 including its Managing Director Sri K.Surendra Babu K.Surendra Babu Gupta, issued a legal Notice to the Respondent No.3 and its Managing Director demanding to discharge the liability vide the Agreements of Sale styled Khararu Nama Oppudala Patram and return the amounts, forthwith.
7. Learned Senior Counsel submits that the Respondent No.3 issued (3) post-dated cheques for Rs.39 lakhs on ICICI Bank, Visakhapatnam. Even before presentation of the cheque since the said Bank A/c was closed, the cheques could not be presented for encashment. Further, the Petitioner and his father Sri B.Satyanarayana filed OS.No.88/2013 (VIII Addl. Dt., Judge, Visakhapatnam) seeking for recovery of Rs.47,11,200/- with subsequent interest. They have also filed I.A.No.325/2023 to order attachment before judgment of the properties vide the schedule attached. The same was allowed and directed for attachment of the properties before Judgment Vide the warrant of attachment. Thereafter, the I.A. Schedule properties are attached, vide Order 38 Rule 5 of C.P.C. Thereafter, the Respondent No.2 vide his letter C.No.2747/C.13/CID/2013, sent a proposal to the Respondent No.1 seeking ad-interim attachment of properties held in the name of the 9 Respondent No.3 in Crime No.63/2013 (IV Town P.S, Visakhapatnam) and Crime No.66/ 2013 (Gajuwaka P.S.) u/s 406, 420 and Sec.5 of A.P. Protection of Depositors & Financial Establishment Act 1999 and Sec.4, 5 & 6 r/w Sec.2(c) of the Prize Chits and Money Circulation Schemes (Banning) Act 1978.
8. To support his contentions, learned Senior Counsel has placed reliance on the judgment of High Court of Judicature of Andhra Pradesh at Hyderabad reported in Megacity Builders, Hyderabad, v. A.P. State Consumer Dispute Redressal Commsisioner, Hyderabad and another 1 , wherein it was held that :
It is not possible to dismiss the petitions under Article 226 of the Constitution of India as not maintainable on the ground of there being an alternative remedy available in cases where the Court has entertained and admitted the writ petition and heard on merits. It is a different matter altogether when the Court in exercise of its discretion refuse to interfere even at the threshold on the ground of availability of an alternative and efficacious remedy. But in a case where the Court having admitted the writ petition and having put the parties to trial normally cannot refuse to exercise its jurisdiction and dismiss the writ petition on the ground of availability of an alternative remedy. It is a matter always well within the discretion of the Court and that discretion is required to be exercised in a judicial and judicious manner. It is equally a well settled proposition of law that where the order is illegal and invalid as being contrary to law, a petition at the instance of person adversely affected by it would lie to the High Court under Article 226 of the Constitution and such a petition cannot normally be rejected on the ground that an appeal lies to the authorities specified under an enactment. It needs no restatement at our hands that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 of the Constitution where the party invoking the jurisdiction has an adequate, alternative and efficacious remedy. The availability of alternative remedies does not oust the jurisdiction of this Court 1 2003 (6)m ALD 834 (DB) 10
(ii) in a case of Ahmmedkutty Bran, S/o Pocker Haji vs. Sukumaran, H/o Pottiyan R Rosamma; Swapna Subash, D/o Pottiyan R Rosamma2, wherein the High Court of Kerala held that :
Is the plaintiff entitled for charged decree in terms of Section 55(6)(b) of the Transfer of property Act?
Coming to the second part of the relief, the plaintiff claims a decree charged on the plaint schedule property. The charge is one provided under Section 55(6) (b) of the Transfer of Property Act. When charge is claimed over the property, Article 62 of the Limitation Act applies and the plaintiff is entitled for a period of twelve years to institute the suit. Therefore, the suit seeking a charged decree over the plaint schedule property is well within the period of limitation. The trial court has not considered the same. Accordingly it is held that, the suit in so far as it seeks to enforce the charge over the plaint schedule property, is within the period of limitation.
10. Now coming to the question as to whether the plaintiff is entitled for a charged decree, it would be appropriate to refer to Section 55(6)(b) of the Transfer of property Act.
Thomas George v. A.T. Joseph & Ors.3 this Court held :- "..... A close reading of Section 55(6)(b) of the Transfer of Property Act would indicate that the creation of charge as per the said provision dependent on the issue as to whether the buyer has improperly declined to accept delivery of the property. It is thus evident that if the buyer does not improperly declines to accept delivery of the property as per the terms of the agreement, a charge will be created in favour of the buyer in respect of the property by operation of the provision contained in Section 55(6)(b). ....." In Videocon Properties Ltd v. Dr. Balachandra Laboratories & others4, the Apex Court observed that, the principle underlying the provision is the trite principle of justice, equity and good conscience.
13. Thus understanding the scope of the first 13. Thus understanding the scope of the first limb of Section 55(6)(b), it is held that, where the nonperformance is not due to the fault of the buyer and the seller, or where both are at blame/default, or where the default occurred at the hands of the vendor, it cannot be said that the buyer has improperly declined to accept delivery and hence he is entitled for charge over the property for the purchase price paid and interest. Of course, whether interest is to be granted and if so at what rate are all matters for determination based on the facts of each case.
2 2024 LawSuit(Ker) 115 3 2016 (1) KLJ 336 4 2004(3)SCC 711 11
9. Learned Senior Counsel has also placed reliance on the decision of Hon'ble Supreme Court reported in Videocon Properties Ltd. Vs. Dr.Bhalchandra Laboratories and others5, wherein the Hon'ble Apex Court held that :
Though, normally this Court would have been reluctant to entertain this appeal at this stage, keeping in view the views expressed by the Division Bench of the High Court on the scope and purport of statutory charge engrafted in Section 55 (6), and the serious repercussion that may follow not only in this case but generally as a principle of law, it became necessary for this Court to deal with the legal issue, leaving otherwise, the parties to work out their ultimate rights respectively, finally in the pending suit, ensuring of course in the meantime proper and sufficient safeguards, as would emanate from the statutory charge envisaged under Section 55 (6) of the Transfer of Property Act. Though the learned counsel on either side attempted to make submissions generally on the disputes between the parties, we indicated to them that they must confine their claims and submissions to the actual issues that would arise on the interim orders passed as to the scope and ambit of the statutory charge generally and for the protection of rights of parties in this case leaving aside other claims and issues, which are only to be adjudicated in the main suit, which is still pending on the original side of the High Court.
We have carefully considered the submissions of the learned counsel appearing on either side. It would be necessary to set out the relevant portions of Section 55 to the extent necessary for appreciating the contentions of the parties on either side.
"55. Rights and Liabilities of buyer and seller. In the absence of a contract to the contrary, the buyer and seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:
The charge would last until the conveyance is executed by the seller and possession is also given to the purchaser and ceases only thereafter. The charge will not be lost by merely accepting delivery of possession alone. This charge is a statutory charge in favour of a buyer and is different from contractual charge to which the buyer may become entitled to under the terms of the contract, and in substance a converse to the charge created in favour of the seller under Section 55(4)(b).
The said statutory charge gets attracted and attaches to the property for the benefit of the buyer the moment he pays any part of the purchase money and is only lost in case of purchaser's own default or his improper refusal to accept delivery. So 5 (2004) 3 Supreme Court Cases 711 12 far as payment of interest is concerned, the section specifically envisages payment of interest upon the purchase-money/price prepaid, though not so specifically on the earnest money deposit, apparently for the reason that an amount paid as earnest money simplicitor, as mere security for due performance does not become repayable till the contract or agreement got terminated and it is shown that the purchaser has not failed to carry out his part of the contract, and the termination was brought about not due to his fault, the claim of the purchaser for refund of earnest money deposit will not arise for being asserted.
10. Per contra, learned Standing Counsel for the CBCID appearing for the respondents contended that Sl.No.8 and 32 properties in G.O.Ms.No.70 got attached by the petitioner in OS No.88 of 2013 on the file of the trial Court. The competent authority field Crl.M.P.No.2083 of 2015 seeking the made absolute attachment of property in the said G.O.Ms.No.70 and the learned Metropolitan Sessions Judge passed made absolute orders. After absolute orders, the competent authority filed Auction petition vide Crl.M.P.No.2904 of 2017 and the Special Court passed the Auction order dated 21.10.2019 and the auction committee was formed by the competent authority. She further submits that, the investigating Agency stated that the competent authority filed a petition to make absolute attachment, the petitioner who was well aware of filing the said Crl.MP, did not file an objection before the Special Court under Section 7(3) of the Protection of Depositors of Financial Establishment Act. She further submits that the object of the Depositors Act is to protect the deposits made by the public in financial Establishments, so the Government by notification appoints the competent authority to exercise control over the properties attached by the Government under Section 3 of the Depositors Act and further the Special Court will decide any claim or objection regarding 13 attachment, but the petitioner more than 8 years not filed any claim petition in Crl.M.P No.2083 of 2015. She mainly contended that the said deposits can only be secured by disposing of the property secured by the accused. The suit filed by the petitioner was decreed on 18.01.2018 thereafter the petitioner did not file an execution petition for the realization of the decretal amount before the Court below, and further the respondents in the suit also not prefer any first appeal before this Court. It is also stated that the crime registered against the Financial Establishment in the year 2011 and the 2 nd respondent in the suit purchased the Sl No.32 property in GO in the year 2012 with the Depositors amount, so the Investigating Agency attached the property which was purchased with the crime proceeds. So the petitioner failed to appear before the Special Court to raise the claim for the reasons best known to him. She further submits that the attachment of the property in respect of Sl.No.8 and 32 in G.O.Ms.No.70 was challenged under the present writ petition raising a ground that the said property was attached in OS No.88 of 2013 before the issuance of the G.O.Ms.No.70 dated 03.04.2014, so the petitioner sought for a relief to delete the properties from the said GO or in alternative recognizes the petitioner as a preferential secured creditor to 3rd respondent. Further, the interim attachment over Sl.No.8 and 232 got attached by way of an absolute order and the property is in the control of the competent authority so the petitioner failed to act to protect his interest over the attached property by approaching the Special Court Visakhapatnam under Section 7(3) of the 14 Depositors Act. Therefore, there are no merits in the present petition and the same is liable to be dismissed.
11. To support her contentions, learned Standing Counsel has placed reliance on the judgment of this Court dated 23.01.2024 passed in W.P. Nos.14360 of 2019 & Crl.P.No.2411 of 2023, wherein this Court has dismissed both the petitions on the ground that since there is no impediment for the trial Court in passing the order in Crl.MP No.30 of 2016, it is rightly proceeded and passed the order. Under these circumstances and as the relief sought for by the petitioners cannot be granted.
12. In the present case, it is observed that, admittedly the suit filed by the petitioner in OS No.88 of 2013 only for recovery of amount and the said suit was decreed. Thereafter, they have also filed IA No.325 of 2013 seeking to order attachment before judgment of the properties vide the schedule attached. On considering the material on record , the learned trial Court has issued attachment order under Order 39 Rule 5 of CPC. This Court further observed that, the 2nd respondent vide his letter C.No.2747/C.13/CID/2013, sent a proposal to the 1st respondent seeking ad interim attachment of properties held in the name of 3rd respondent in crime No.63/2013 on the file of IV Town P.S. and in Crime No.66/2013 on the file of Gajuwaka P.S. Further, vide G.O.Ms.No.70, the 1st respondent in exercise of powers conferred under Section 3 of the Act, passed ad-interim order of attachment of the properties. Thereafter, the petitioner has submitted a representation to 2nd respondent to lift the attachment in respect of items No.8 and 32 informing 15 about the order of attachment before judgment dated 22.03.2013 and effecting of attachment on 10.04.2013.
13. It is the contention of the learned Standing Counsel that the petitioner herein is not vigilant about his rights, so he did not approach the Special Court in Visakhapatnam, which is the appropriate Court to decide his claim over the property attached before judgment in the suit in OS No.88 of 2013 and further though the counter was filed in the year 2015 by the 2nd respondent, the petitioner had not taken any steps for disposal of the writ petition nor approached the Special Court.
14. On a perusal of the material, it is observed that, as the suit was decreed and attachment was already ordered by the trial Court in the year 2013, it appears that, prior to the attachment of the respondents, impugned order dated GO Ms No.70 where decree was ordered at the same time property was already attached by the court below. So in view of the same, while the Court attachment is pending prior to the attachment proceedings of the investigating agencies is the question involved in the writ petition.
15. So, in view of the same, the contention raised by the petitioner that when the Court decree of attachment are pending, the respondent investigating authorities issuing the impugned proceedings dated GO Mos No.70 is sustainable or not?
16. Admittedly the suit was filed for recovery of money and decree was ordered and attachment was also issued. Whatever the procedure by the 16 respondent with regard to their attachment of property and whatever the documents placed before this Court, the same were the decided before the Special court may a.....of the attachment procedure adopted by the respondents. So, in view of the same, it is observed that, it is not possible to dismiss the petitions under Article 226 of the Constitution of India as not maintainable on the ground of there being an alternative remedy available in cases where the Court has entertained and admitted the writ petition and heard on merits.
17. It is a different matter altogether when the Court in exercise of its discretion refuse to interfere even at the threshold on the ground of availability of an alternative and efficacious remedy. But in a case where the Court having admitted the writ petition and having put the parties to trial normally cannot refuse to exercise its jurisdiction and dismiss the writ petition on the ground of availability of an alternative remedy. It is a matter always well within the discretion of the Court and that discretion is required to be exercised in a judicial and judicious manner. It is equally a well settled proposition of law that where the order is illegal and invalid as being contrary to law, a petition at the instance of person adversely affected by it would lie to the High Court under Article 226 of the Constitution and such a petition cannot normally be rejected on the ground that an appeal lies to the authorities specified under an enactment. The availability of alternative remedies does not oust the jurisdiction of this Court.
17
18. This Court has carefully perused the material upon which reliance has been placed by the learned counsel for petitioner. It is no doubt true that the Madras High Court refused to entertain the writ petition on the ground of availability of an alternative remedy.
19. Having regard to the facts and circumstances of the case and considering the submissions of both the learned counsels, this Court is inclined to allow the writ petition.
20. Accordingly the Writ Petition is allowed setting aside the G.O.Ms.No.70 Home (General.B/A2) Department, dated 3.4.2014 from attachment and directing the respondents No.1 and 2 to delete the properties mentioned at Sl.Nos.8 and 32 of the Annexure to the above G.O.Ms.No.70 dated 03.04.2014. There shall be No order as to costs.
21. As a sequel, miscellaneous petitions pending consideration if any in the writ petition shall stand closed.
______________________________ DR. K. MANMADHA RAO, J.
Date : 18 -06-2024 Note: L.R. Copy to be marked.
(b/o)Gvl 18 HON'BLE DR. JUSTICE K. MANMADHA RAO WRIT PETITION No.35348 of 2015 Date : 18.06.2024 Gvl