Mr Jagadish S vs M/S Anand Rathi Global Finance ...
2022 Latest Caselaw 11097 Kant

                          1
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF JULY, 2022

                      PRESENT

           THE HON'BLE MR. ALOK ARADHE
               ACTING CHIEF JUSTICE

                        AND

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

       WRIT APPEAL NO.405/2022(GM-RES)

BETWEEN:

MR JAGADISH S
AGED ABOUT 55 YEARS
PROPRIETOR J.K. DEVELOPERS
NO.15/22 DISTRICT FLOOR BONE MILL
HESSARAGHATTA MAIN ROAD
BENGALURU - 560 073.                 ...APPELLANT

(BY SRI UMAPATHI S, ADVOCATE)

AND:

M/S ANAND RATHI GLOBAL FINANCE LIMITED
HAVING ITS REGISTERED OFFICE
AT EXPRESS ZONE AS WING 10TH FLOOR
WESTERN EXPRESS HIGHWAY GOREGAON (EAST) MUMBAI -
400 063 AND
ALSO, OFFICE FOR FURTHER CORRESPONDENCE
AT EXPRESS ZONE A WING 8TH FLOOR WESTERN EXPRESS
HIGHWAY GOREGAON (EAST)
MUMBAI - 400 063
HAVING ITS OFFICE AT 4TH FLOOR
BIKANER PINNACLE NO.1 RHENIUS STREET
OFF RICHMOND ROAD
BENGALURU - 560 025
THROUGH ITS AUTHORISED OFFICER.
                                       ...RESPONDENT
(SERVED)
                             2

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER 06.04.2022 PASSED BY THE LEARNED SINGLE JUDGE
IN WP NO.18903/2021 (GM-RES).


     THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE
FOLLOWING:

                    JUDGMENT

This intra court appeal is filed by the

unsuccessful petitioner challenging the order dated

06.04.2022 passed by the learned Single Judge of

this Court in W.P.No.18903/2021.

2. Heard the learned Counsel for the petitioner

and also perused the material available on record.

3. The appellant/petitioner who is a borrower

had filed an appeal before the Debt Recovery

Tribunal (DRT) challenging the possession-Notice

issued by the respondent-Secured Creditor under

Section 13(4) of the Securitization and

Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002 (for short, 'SARFAESI

Act').

4. During the pendency of the appeal before

the DRT, the respondent had initiated proceedings

under Section 14 of the SARFAESI Act, before the

Court of I Addl. Chief Metropolitan Magistrate,

Bengaluru for taking possession of the property,

which was the subject matter of possession-Notice

issued under Section 13(4) of the SARFAESI Act.

5. The learned Magistrate vide his order dated

16.10.2020 had allowed the petition under Section

14 of the SARFAESI Act and vide his order dated

12.10.2021, had appointed the CMO of the Court as

Court Commissioner to assist the respondents herein

to take physical possession of the property.

6. Being aggrieved by the said orders dated

16.10.2020 and 12.10.2021, the appellant/petitioner

had approached this Court in W.P.No.18903/2021,

which was dismissed as not maintainable by the

learned Single Judge of this Court vide the order

impugned, on the ground that the appellant has got

an alternative remedy under Section 17 of the

SARFAESI Act before the DRT against the orders

passed in the proceedings under Section 14 of the

SARFAESI Act.

7. Though the learned Counsel appearing for

the appellant/petitioner has strenuously argued,

contending that the learned Magistrate had no

jurisdiction to pass the impugned orders and there

was no justification on the part of the respondent-

Secured Creditor to have initiated proceedings under

Section 14 of the SARFAESI Act, when undisputedly

an appeal filed against Section 13(4) notice by the

appellant was pending before the DRT, he has fairly

submitted that subsequent to the dismissal of the

writ petition, he has already filed an appeal before

the DRT under Section 17 of the SARFAESI Act for

assailing the orders passed by the learned Magistrate

in the proceedings initiated by the respondents

under Section 14 of the SARFAESI Act, which is now

pending consideration in Appeal No.958/2022.

8. Since the appellant has already availed the

alternative remedy provided under the statute, it is

not open for him to parallely prosecute this appeal.

9. Under these circumstances, this appeal is

disposed of. All the contentions urged by the

appellant in support of his case are kept open with

liberty to urge the same in the appeal, which he has

now filed before the DRT challenging the orders

which were impugned in the writ petition.

Sd/-

ACTING CHIEF JUSTICE

Sd/-

JUDGE KK