APHC010635982025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3558] TUESDAY,THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA WRIT PETITION NO: 32880/2025 Between: 1. PITHANI SRINIVASA RAO,, S/O. SATYANARAYANA, AGED ABOUT 49 YEARS,R/O.D.NO.5-42, KOTIPALLE ROAD, NEAR BRIDGE DOWN, KARAPA MANDAL, VTC PENUGUDURU, KAKINADA DISTRICT. 2. PITHANI SAI KUMARI,, W/O. SRINIVASA RAO, AGED ABOUT 36 YEARS,R/O. D.NO.5-42, KOTIPALLE ROAD, NEAR BRIDGE DOWN, KARAPA MANDAL, VTC PENUGUDURU, KAKINADA DISTRICT. ...PETITIONER(S) AND 1. THE STATE BANK OF INDIA, REP. BY ITS AUTHORIZED OFFICER, AD B BRANCH, PEDDAPURAM BRANCH, EAST GODAVARI DISTRICT 2. THE CHIEF JUDICIAL MAGISTRATE, RAJAMAHENDRAVARAM, EAST GODAVARI DISTRICT. 3. THE SUPERINTENDENT OF POLICE, EAST GODAVARI DISTRICT ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased tomay be pleased to issue a writ or direction more particularly one in the nature of writ of certiorari and call for the records pertaining to the 2 CMR,J & GTK,J W.P.No.32880 of 2025 proceedings of the 2nd respondent vide Crl.M.P.No.476/2025, Dt.05.11.2025 and further appointing advocate commissioner and directing him to deliver physical possession of the property i.e., residential house in an extent of Ac.0.07 1/2 cents or 363 Sq.yards out of full extent of Ac.4.40 cents situated in Sy.No.44/1 at D.No.44/1 (old D.No.4-137 in Penuguduru Village, Penuguduru gram panchayat, Karapa Mandal, Kakinada, East Godavari District as illegal, arbitrary and one without jurisdiction and in violation of Art14, 21 and 300A of constitution of India and contrary to the provisions of S A R F A E S I Act, 2002 and rules thereunder and consequently direct the respondents not to interfere with the peaceful possession of the subject property by setting aside the orders of the 2nd respondent in Crl.M.P.No.476/2025, Dt.05.11.2025 and pass such IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may pleased to direct the respondents not to interfere with the peaceful possession of the subject property by suspending the orders of the 2nd respondent in Crl.M.P.No.476/2025, Dt.05.11.2025, pending disposal of the Writ Petition and pass such Counsel for the Petitioner(S): 1. RAVITEJA JAMMALAMADAKA Counsel for the Respondent(S): 1. RAVITEJA JAMMALAMADAKA Counsel for the Respondent(S): 1. S SATYANARAYANA MOORTHY 2. GP FOR HOME The Court made the following: 3 CMR,J & GTK,J W.P.No.32880 of 2025 ORDER: (Per Hon’ble Sri Justice Cheekati Manavendranath Roy) Heard Sri J. Raviteja, learned counsel for the petitioners and Sri S. Satyanarayana Moorthy, learned Standing Counsel for the 1st respondent-bank. 2. Questioning the order dated 05.11.2025 passed in Crl.M.P.No.476 of 2025 by the learned Chief Judicial Magistrate, Rajamahendravaram, appointing an Advocate Commissioner and directing him to take physical possession of the secured asset, the instant writ petition has been filed by the petitioners, who are the principal borrowers. 3. The petitioners, who are the principal borrowers, assails the impugned order dated 05.11.2025 of the learned Magistrate passed under Section 14 of the SARFAESI Act appointing an Advocate Commissioner to take delivery of physical possession of the secured asset on the ground that the affidavit filed by the bank before the learned Magistrate does not contain an averment that the representation submitted by the petitioners in response to Section 13(2) notice was considered and rejected, as required under clause (7) of the proviso to Section 14 of the Act. 4. Proviso to Section 14 enumerates the requirements from clause (1) to clause (9) to be mentioned and declared in the affidavit that is required to be filed before the learned Magistrate to order to take possession of the secured asset. Clause (7) of the proviso thereof envisages that the affidavit has to contain a declaration that the objection or representation submitted by the borrowers in response to the notice received by him has been considered by the secured creditor and that such representation was not accepted by giving reasons for it and that the same has been communicated to the borrower. Admittedly, the secured creditor did not plead or declare in the affidavit that the objection of the borrowers has been considered and rejected by giving reasons to it and that the same has been communicated to the borrower. But without considering the same, the learned Magistrate has 4 CMR,J & GTK,J W.P.No.32880 of 2025 ordered to take possession of the property by appointing an Advocate Commissioner by the impugned order. It shows that the impugned order was mechanically passed without applying the mind to the contents of the affidavit and without verifying whether the requirements as enumerated in the proviso to Section 14 are pleaded or declared in the affidavit or not. Therefore, the impugned order of the learned Magistrate is ex facie illegal and it is clearly unsustainable under law. 5. Resultantly, the Writ Petition is allowed. The impugned order dated 05.11.2025 passed in Crl.M.P.No.476 of 2025 by the learned Chief Judicial Magistrate, Rajamahendravaram, is hereby set aside. However, the respondent-bank/secured creditor is at liberty to file a fresh affidavit under Section 14 of the Act before the learned Magistrate, seeking an order to take physical possession of the said property by mentioning all the requirements contemplated under the proviso to Section 14 of the Act in the affidavit that may be filed before the learned Magistrate. In case any such petition is filed by the respondent-bank/secured creditor, the learned Chief Judicial Magistrate, Rajamahendravaram, shall dispose of the said petition expeditiously within a period of two (02) weeks from the date of filing the said petition. There shall be no order as to costs. 6. As a sequel, Miscellaneous Applications pending, if any, shall stand closed. _________________________________________ CHEEKATI MANAVENDRANATH ROY, J ________________________ TUHIN KUMAR GEDELA, J Date : 23-12-2025 Note : Issue CC by 29.12.2025 B/o BMS