Karnataka High Court
M/S Oasis Distributors vs The Authorized Officer/ Chief ... on 11 August, 2023
Bench: Krishna S.Dixit
-1-
NC: 2023:KHC:28615
WP No. 15334 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 15334 OF 2023 (GM-RES)
BETWEEN:
1. M/S OASIS DISTRIBUTORS
REPRESENTED BY PROPRIETOR,
MR T S ZAFULLA, S/O MR T S BUDAN BASHA,
(SINCE KAMARUNNISA EXPIRED ON 02-02-2019)
T S GARDEN, BEHIND SUPER BAZAR,
UDUPI 576 101.
2. MR. T S BUDAN BASHA
S/O MR T S ABDUL RAHIMAN,
AGED ABOUT 86 YEARS,
T S GARDEN, BEHIND SUPER BAZAR,
UDUPI 576 101.
3. MR. T S ZAFRULLA
Digitally signed S/O MR T S ABDUL RAHIMAN,
by SHARADA AGED ABOUT 55 YEARS,
VANI B
T S GARDEN, BEHIND SUPER BAZAR,
Location: HIGH UDUPI 576 101.
COURT OF
KARNATAKA NOTE: KAMARUNNISA EXPIRED ON 02-02-2019
HENCE SHE HAS NOT MADE PARTY IN THIS WP
PETITIONER NO.2 NOT CLAIM THE
BENEFIT OF SENIOR CITIZEN
...PETITIONERS
(BY SRI. SHASHIKANTH PRASAD.,ADVOCATE)
AND:
THE AUTHORIZED OFFICER/ CHIEF MANAGER
CANARA BANK LTD.,
FOUNDERS BRANCH,
-2-
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WP No. 15334 of 2023
MUKIND NIWAS, K M MARGA,
UDUPI 576 101.
...RESPONDENT
(BY SRI.C VINAY SWAMY., ADVOCATE FOR C/R
IN CP NO.9718/2023)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE ORDER DATED 19/10/2022 IN CRL MISC NO
167/2022 PASSED BY THE COURT OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, UDUPI
(ANNEXURE-C).
THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The borrowers are before this court for laying a
challenge to the coercive loan recovery proceedings
instituted under the provisions of SARFAESI Act, 2002.
They were granted reprieve vide interim order dated
26.07.2023 which reads as under:
"Counsel for the petitioners submits
that his clients would pay 50% of the amount
outstanding namely Rs.64,00,000/- [i.e.,
Rs.32,00,000] within one week and on such
payment being made, the possession of the
property should be restored to his client. He
also undertakes to come out with the plan of
repayment of the remainder.
Call this matter on 4.8.2023 for further
hearing. If payment is not made, Writ
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WP No. 15334 of 2023
Petition would be dismissed on that ground
itself".
2. Thereafter extension was granted vide order
dated 04.08.2023 which reads as under:
"This Court vide order dated 26.07.2023 has
said as under:
"Counsel for the petitioners submits that
his clients would pay 50% of the amount
outstanding namely Rs.64,00,000/- [i.e.,
Rs.32,00,000] within one week and on such
payment being made, the possession of the
property should be restored to his client. He
also undertakes to come out with the plan of
repayment of the remainder.
Call this matter on 4.8.2023 for further
hearing. If payment is not made, Writ Petition
would be dismissed on that ground itself".
Counsel for the respondent-bank
complains that the condition subject to which
reprieve was granted has not been complied
with by making payment of the stipulated
amount and therefore writ petition be
dismissed Consistently with a catena of
decisions of Apex Court. He has also produced
a copy of judgment dated 05.01.2023 passed
by a Co-ordinate Bench of this Court in
petitioner's W.P.No.15613/2022 in respect of
very same loan. The Court has to have say of
the counsel for the petitioner who is absent.
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WP No. 15334 of 2023
Call this matter on 11.08.2023 to enable the
counsel for petitioner to come and make
submission. Interim order granted earlier is
extended till next date of hearing".
3. Learned Panel Counsel appearing for the bank
submits that the petitioners were before this Court last
year in W.P.No.15631/2022 for a similar relief and a Co-
ordinate Bench of this Court vide judgment dated
05.01.2023 had granted a period of five months for
making payment of outstanding amount. Paragraph 9 of
the judgment reads as under:
"9. In the aforesaid facts and circumstances,
I deem it appropriate to dispose the petition
with a direction to the petitioners to deposit
the entire amount as is offered by him,
within five months from the date of receipt of
copy of this order, failing which, it would be
open to the respondent-Bank to initiate
proceedings in accordance with law".
4. Learned Panel Counsel vehemently complains
that the petitioners have not paid any amount despite the
judgment of last year in the above writ petition and also in
spite of two interim orders passed in this petition and
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WP No. 15334 of 2023
therefore, he contends that they do not deserve any
leniency at the hands of this court. At this stage, counsel
for the petitioners have moved a memo seeking leave to
withdraw the petition arguing that his clients have already
applied for OTS benefit. The memo reads as under:
"Now the Respondent Bank agreed for OTS
proposal. Hence, the Petitioner withdraw this
Writ Petition.
Therefore prays that the above writ petition
may be disposed as not press."
6. Ordinarily, this court would not deny leave to
withdraw petitions of the kind since that right is essentially
of the dominant litis in the light of SHEELA BARSE vs.
UNION OF INDIA, (1988) 4 SCC 226. However that is not
the Thumb Rule. Where the conduct of the litigant is
culpable, leave to withdraw is not accorded. The above
narrative shows that petitioners' conduct is blameworthy
qua the Respondent-bank. Therefore this request for
withdrawal of the petition is rejected and petition being
thoroughly devoid of merits, is dismissed with a cost of
Rs.5,000/- (Rupees Five Thousand) only.
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The bank to take all coercive proceedings for the
recovery of subject loan amount on a war footing.
Sd/-
JUDGE
Snb/
