Karnataka High Court
Tanveer S/O Gulam Hussain Gavandi vs The Assistant Commissioner on 24 August, 2023
Bench: Sachin Shankar Byssmj
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NC: 2023:KHC-D:9501
WP No. 105245 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 105245 OF 2023 (GM-RES)
BETWEEN:
TANVEER S/O. GULAM HUSSAIN GAVANDI,
AGE: 49 YEARS, OCC: BUSINESS,
R/O: PLOT NO. 48, SEC NO.12,
MAHANTESH NAGAR,
BELAGAVI-590016.
...PETITIONER
(BY SRI RAM V. GHORPADE, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER,
BELAGAVI SUB DIVISION,
BELAGAVI-590001.
2. THE AUTHORISED OFFICER &
BRANCH MANAGER,
BAILHONGAL URBAN
MOHANKUMAR CO-OPERATIVE BANK LIMITED,
B SHELAR
SHIVABASAVA NAGAR,
Digitally signed by KOLHAPUR CROSS,
MOHANKUMAR B
SHELAR
Location: DHARWAD
BELAGAVI-590016.
Date: 2023.08.29
16:28:24 -0700 ...RESPONDENTS
(BY SRI P.N. HATTI, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUED A WRIT IN
THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER
BEARING NO.NO.RRC/CR-70/2021-22 DATED: 03.08.2023
(ANNEXURE-C), PASSED BY THE 1ST RESPONDENT; ISSUE WRIT OR
ORDER OR DIRECTION IN THE NATURE OF WRIT OF MANDAMUS
DIRECTING THE 2ND RESPONDENT TO CONSIDER HIS REQUEST FOR
GRANTING SOME REASONABLE TIME TO CLEAR THE AMOUNT DUE
TO 2ND RESPONDENT BANK WITH AN ONE TIME SETTLEMENT.
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NC: 2023:KHC-D:9501
WP No. 105245 of 2023
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The captioned writ petition is filed by the borrower
assailing the order of respondent No.1-Assistant
Commissioner vide Annexure-C, dated 03.08.2023
directing the petitioner to handover the possession of
mortgaged property to respondent No.2. The impugned
order is under challenge.
2. The Division Bench of this Court, in
W.A.No.1305/2021 disposed on 23.12.2021, while taking
cognizance of judgment rendered by the Hon'ble Apex
Court in the case of K.Virupaksha and another Vs.
State of Karnataka1 has held that the SARFAESI Act is
complete code in itself which provides procedure to be
followed by the secured creditor. The Division Bench
further held that the SARFAESI Act also contemplates
remedy for a borrower. The Hon'ble Apex Court in the case
of K.Virupaksha (cited supra) taking note of the authority
(2020) 4 SCC 440
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WP No. 105245 of 2023
vested with DRT under sub-section (3) in Section 17 has
held that the Legislature by including sub-section (3) in
Section 17 has gone to the extent of vesting the DRT with
authority to even set-aside a transaction including sale
and to restore possession to the borrower in appropriate
cases. Therefore, the Apex Court has come down heavily
on High Courts entertaining writ petitions questioning the
orders passed under the provisions of SARFAESI Act
which squarely fall within the domain of DRT.
3. The principles laid down by the Apex Court in
the judgment cited supra followed by the Division Bench,
binds on this Court. The order of respondent No.1-
Assistant Commissioner directing the petitioner to
handover the possession of the mortgaged property also
squarely fall within the domain of Section 17 of the
SARFAESI Act. Therefore, the petitioner could not have
knocked the doors of writ Courts assailing the impugned
orders. The writ petition is devoid of any merits and
accordingly stands dismissed.
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WP No. 105245 of 2023
4. However, it is made clear that this order would
not come in the way of the petitioner to approach the
competent forum under the provisions of SARFAESI Act.
5. In view of disposal of the petition, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
JUDGE
YAN
