Smt. Vathsala T vs M/S. Indostar Capital Finance ...
2021 Latest Caselaw 5568 Kant

                          1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU

    DATED THIS THE 6TH DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.20827 OF 2021(GM-RES)
BETWEEN:

SMT. VATHSALA T,
D/O. H R THIMMAIAH, ADVOCATE,
AGED ABOUT 39 YEARS,
R/AT NO. 1074, GROUND FLOOR,
11TH MAIN ROAD, 2ND STAGE,
WEST OF CHORD ROAD,
MAHALAKSHMIPURAM,
BENGLAURU 560 086.
                                         ...PETITIONER
(BY SRI. KRISHNA MURTHY N, ADVOCATE)

AND:

1. M/S. INDOSTAR CAPITAL FINANCE LIMITED.,
   REP BY ITS AUTHORIZED OFFICER,
   OFFICE AT NO. 13, CRN CHAMBERS,
   4TH FLOOR, KASTURBA ROAD,
   BENGALURU 560 001.

2. M/S. TKK ZIKPPERS AND THREADS (INDIA) PVT LTD
   REP BY ITS DIRECTORS,
   OFFICE AT NO. 13/19, 3RD CROSS,
   MARAPPANAPALYA INDUSTRIAL SUBURB,
   YESHWANTHAPURA,
   BENGALURU 560 022.

3. MR. KISHORE AGARWAL
   NO. 159, 2ND FLOOR,
   3RD MAIN, 3RD CROSS,
   MARAPPANAPALYA,
   YESHWANTHPUR,
   BENGALURU 560 096.

4. MR. SATNELY KRIZ
   NO. 13/19, 2ND FLOOR,
   3RD CROSS, MARAPPANAPALYA,
   YESHWANTHAPUR,
   BENGALURU 560 022.
                             2

5. MRS. VIJETHARAJ M K
   NO. 1074/2,
   11TH MAIN ROAD, NAGPURA,
   MAHALAKSHMIPURAM,
   RAJAJINAGAR,
   BENAGALURU 560 086.

6. M/S. OM INTERNATIONAL
   REP BY ITS AUTHORISED SIGNATORY,
   OFFICE AT NO. 1074/2,
   11TH MAIN ROAD, NAGPURA,
   MAHALAKSHMIPURAM,
   RAJAJINAGAR,
   BENGALURU 560 086.

7. SRI. M KANTARAJ
   S/O. LATE. MAYIGAIAH,
   R/AT NO. 1074, GROUND FLOOR,
   11TH MAIN ROAD,
   2ND STATE, WEST OF CHORD ROAD,
   MAHALAKSHMIPURAM,
   BENGALURU 560 086.
                                         ... RESPONDENTS
(BY SRI. ABHINAY V, ADVOCATE FOR C/R1)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DIRECT THE R-1 TO PUT THE PETITIONER IN POSSESSION
OF GROUND FLOOR PORTION OF SCHEDULE B PROPERTY
AND ETC.,

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-

                         ORDER

A distressed lady lawyer of repute is knocking at the

doors of Writ Court grieving that she being the tenant of

subject property in which both her residence & home office

are situate has been taken away by the respondent -

lending institution pursuant to the proceedings taken up

under SARFAESI Act, 2002 on the ground that the

respondent borrower and the sureties have not repaid the

outstanding debts.

2. Respondent - lending institution is represented

by its Sr. Panel Counsel who opposed the grant of interim

relief; however, this court vide order dated 19.11.2021 had

directed restoration of 'permissive occupation' of the

premises to the petitioner so that she could take refuse

both for residence and occupation; graciously this

direction was obeyed and the petitioner has been

reinstated in the property; when this matter was taken up

before this court today for consideration, the respondent-

borrower & the sureties despite service of notice, have

chosen to remain unrepresented.

3. Having heard the learned counsel for the

parties and having perused the petition papers, this Court

is inclined to grant reprieve to the petitioner as under and

for the following reasons:

(a) There is no dispute that the subject property in

which the security interest was created, belongs to the

principal borrower and that the petitioner happens to be

the tenant in possession of the same; petitioner's assertion

that she has paid to the owner of the property a sum of

Rs.15,00,000/- by RTGS, is established and that this

amount will be refunded to her when the lease is

determined; petitioner's contention that whatever interest

that would have accrued on this amount shall be treated

as the notional rent, is not in dispute.

(b) Learned Panel Counsel for the bank submits

that now, the Principal Borrower having negotiated a One

Time Settlement has paid the amount; if that be so, the

property ceases to be a security interest of the lender and

that the petitioner can continue in its possession till the

lease is determined and the aforesaid amount i.e.,

Rs.15,00,000/- is refunded to her.

(c) Petitioner's undertaking that the proceedings in

Crime No.198/2021 initiated on her FIR/complaint shall

not be pressed, is placed on record; the jurisdictional

criminal court shall at sight of this judgment shall dispose

off the said proceedings accordingly; the allegations made

in the complaint against the officials of the lender

institution or others shall be treated as having been

withdrawn unconditionally; it hardly needs to be stated

that the Writ Court cannot turn a Nelson's eye to the woes

of distressed & scrupulous litigants that are victimized by

the conspiracy of circumstances.

In the above circumstances, this Writ Petition

succeeds and the impugned order is set at naught; this

court places on record its appreciation for the grace shown

by learned Sr. Panel Counsel appearing for the first

respondent lending institution.

It is open to the petitioner to press the observations

made herein above in any proceedings for protecting her

possession and seeking refund of the amount in deposit as

mentioned above, independent of the subject

instrument/document to which petitioner and the landlord

happen to be the signatories.

Costs made easy.

Sd/-

JUDGE

Bsv