Canara Bank vs Smt Sharadhamma
2021 Latest Caselaw 627 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF JANUARY, 2021

                          BEFORE

         THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.22411 OF 2019 (GM-CPC)

BETWEEN:
CANARA BANK
MANDIPET,
DAVANGERE BRANCH,
DAVANGERE - 577 003.
REPRESENTED BY
SENIOR MANAGER
                                            ...PETITIONER
(BY SRI. T.P.MUTHANNA, ADVOCATE)

AND:

1 . SMT. SHARADHAMMA,
W/O ANANDACHARI &
D/O KRISHNACHARI,
AGED ABOUT 50 YEARS,
R/O HIREHALLI VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT.

2 . SMT. LAKSHMAMMA,
W/O LATE KRISHNACHARI,
AGED ABOUT 78 YEARS,

3 . K. RANGACHARI,
S/O LATE KRISHNACHARI,
AGED ABOUT 56 YEARS,

4 . K. VENKATESHACHARI,
S/O LATE KRISHNACHARI,
AGED ABOUT 53 YEARS,

5 . K. RATNACHARI,
S/O LATE KRISHNACHARI,
AGED ABOUT 51 YEARS,
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6 . K. RAMAKRISHNACHARI
S/O LATE KRISHNACHARI,
AGED ABOUT 49 YEARS,

7 . SMT. L. SUDHA,
W/O K. RANGACHARI,
AGED ABOUT 47 YEARS,

8 . SMT. K. NAGAVENI,
W/O K.VENKATESHACHARI,
AGED ABOUT 46 YEARS,

9 . SMT. SUNITHA,
W/O K.RATNACHARI,
AGED ABOUT 42 YEARS,

10 . SMT. A.V. NALINAKSHI,
W/O K.RAMAKRISHNACHARI,
AGED ABOUT 36 YEARS,

ALL THE RESPONDENTS
2 TO 10 ARE R/O 4TH CROSS,
PAWAGADA ROAD,
BEHIND VYSYA BANK,
CHALLAKERE - 577 522,
CHITRADURGA DISTRICT.
                                          ...RESPONDENTS

(BY SRI. K.N.BALARAJ, ADVOCATE FOR R1 & R7 ABSENT;
   R2-R6 & R8-R10 SERVED & UNREPRESENTED)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS OF THE CASE IN O.S.NO.51/2017 ON THE FILE
OF THE SENIOR CIVIL JUDGE, CHALLAKERE, AND SET ASIDE
THE ORDER DTD 28.11.2018 PASSED IN PRELIMINARY ISSUED
NO.7 [ANNEXURE-A].

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY THROUGH VIDEO
CONFERENCE, THE COURT MADE THE FOLLOWING:
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                             ORDER

Petitioner being the tenth defendant in a partition suit

in O.S.No.51/2017 filed by the first respondent herein is

knocking at the doors of the Writ Court for assailing the

order dated 28.11.2018, a copy whereof is at Annexure-A

whereby the learned Senior Civil Judge, at Challakere, having

answered issue No.7 in the negative, has rejected its

application in I.A.No.7 holding that the suit is maintainable.

2. After service of notice, the contesting respondent

Nos.1 & 7 have entered appearance through their counsel

who has remained consistently absent. However, the absence

of the counsel will not relieve this Court of its duty to decide

the matter on merits.

3. Having heard the learned counsel for the

petitioner and having perused the petition papers, this Court

grants indulgence in the matter because:

(a) the respondent Nos.2 to 10 herein happen to be

borrowers of the petitioner-Bank who have suffered certain

judgments & decrees at the hands of the DRT; other cases are

pending consideration before the DRT; when petitioner

invoked the provision of Securitization and Reconstruction on

Financial Assets and Enforcement of Security Interest Act,

2002 for recovering the debt for the repayment of which the

property has been furnished by way of security, the first

respondent has instituted the present suit;

(b) the question whether suit of the kind is maintainable, is

no longer res integra in view of decision of Apex court in

JAGDISH SINGH vs HEERALAL AND OTHERS, Civil Appeal

No.9771/2013 disposed off on 30.10.2013 wherein para 23

reads as under:

"23. We are of the view that the civil court jurisdiction is completely barred, so far as the measure taken by a secured creditor under sub- section (4) of Section 13 of the Securitisation Act, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal. To determine as to whether there has been any illegality in the measures taken. The bank, in the instant case, has proceeded only against secured assets of the borrowers on which no rights of Respondent Nos.6 to 8 have been crystalised, before creating security interest in respect of the secured assets. In such circumstances, we are of the view that the High Court was in error in holding that only civil court has jurisdiction to examine as to whether the measures taken by the secured creditor under sub-section (4) of Section 13 of the Securitisation Act were legal or not. In such circumstances, the appeal is allowed and the judgment of the High Court is set aside. There shall be no order as to costs."

In the above circumstances, this writ petition succeeds;

impugned order is set at naught; petitioner's subject

application having been favoured, suit is held to be not

maintainable and accordingly, the same is dismissed.

However, the grounds & remedies otherwise available to

the first respondent in law are reserved. Since alternate

remedy is reserved to the first respondent-plaintiff, the

SARFAESI proceedings shall not be precipitated by the

petitioner bank for a period of four weeks so that the said

respondent may avail the alternate remedy, if any.

All contentions of the parties are otherwise kept open.

No costs.

Sd/-

JUDGE

DS