Karnataka High Court
Smt Shanthakumari vs The General Manager on 13 July, 2023
Bench: C.M. Poonacha
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NC: 2023:KHC:24419
WP No. 17352 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
WRIT PETITION NO. 17352 OF 2021 (GM-RES)
BETWEEN:
1. SMT SHANTHAKUMARI
D/O MUNIVENKATAPPA,
W/O NARASIMHA MURTHY,
AGED ABOUT 31 YEARS,
R/AT THAGACHAGUPPE VILLAGE,
KUMBALGODU POST, KENGERI HOBLI,
BENGALURU SOUTH TALUK 560060
...PETITIONER
(BY SRI. ANAND BEERANNAVAR., ADVOCATE)
AND:
1. THE GENERAL MANAGER
BENGALURU CITY CO OPERATIVE BANK LTD.
NO 3, PAMPA MAHAKAVI ROAD,
CHAMARAJPET,
BENGALURU 560018
Digitally signed
by BHARATHI 2. SRI MUNIVENKATAPPA
S S/O LATE SRI THIMMAIAH,
Location: HIGH AGED ABOUT 64 YEARS,
COURT OF R/AT DODDAKALLASANDRA VILLAGE,
KARNATAKA UTTARAHALLI HOBLI,
BENGALURU SOUTH TALUK 560061
3. SRI BHARATH KUMAR
S/O G CHINNASWAMY NAIDU,
AGED ABOUT 54 YEARS,
R/AT NO. 62, 2ND FLOOR,
KALYANI NAGAR, VASANTHPURA,
BENGALURU 560061
...RESPONDENTS
(BY SRI G SURESH, ADVOCATE FOR R1,
SMT KRISHIKA VAISHNAV, ADVOCATE FOR
SRI A MAHESH CHOWDARY, ADVOCATE FPR R3
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WP No. 17352 of 2021
SRI M K SHIVARAM, ADVOCATE FOR R2)
THIS W.P. IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED SALE
NOTICE OF IMMOVABLE PROPERTY DTD 23.08.2021 VIDE ANNX-H
ISSUED BY THE R-1 AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard Sri Anand Beerannavar, learned counsel for the
Petitioner and Sri G. Suresh, learned counsel for Respondent
No.1, Sri A. Mahesh Chowdhary and Smt. Krishika Vaishanav,
learned counsel for Respondent No.3. None appears for
Respondent No.2.
2. Although the above matter is listed for hearing on
I.A.1/2022 for vacating stay, with the consent of learned
counsels for the parties, the above Writ Petition is heard on
merits.
3. The present Writ Petition is filed seeking for the
following reliefs:
"a) To quash the impugned Sale Notice of immovable
property dated 23.08.2021 bearing
BCCB/AO/SAFAESIA/23/2021-22 at ANNEXURE-H issued
by the 1st respondent.
b) Pass such other orders as this Hon'ble Court deems fit
in the facts and circumstances of the case;"
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4. It is the case of the Petitioner that he is the
absolute owner of property bearing Khaneshamari No.1,
Doddakallasandra Village, Uttarahalli Hobli, Bangalore South
Taluk, measuring East to West, 29 feet and North to South, 60
feet (hereinafter referred to as 'petition schedule property')
having acquired the same pursuant to the compromise decree
dated 19.08.2008 passed in O.S. No.1605/2007 on the file of
City Civil Judge, Bangalore, and that the khata and the other
revenue records have been transferred to his name.
5. It is the case of the Petitioner that Respondent No.2
who is none other than the father of the Petitioner sold the
same property to Respondent No.3 and thereafter Respondent
No.3 has mortgaged the property in favour of Respondent
No.1-Bank. The loan availed by Respondent No.3 not having
been repaid, the Respondent No.1 initiated proceedings under
the provisions of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
(hereinafter referred to as 'SARFAESI Act') and a sale notice
dated 23.08.2021 (Annexure-H to the Writ Petition) came to be
issued. Being aggrieved, the present Writ Petition is filed.
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6. It is the contention of the Petitioner that she being
the absolute owner and Respondent No.2 not having any right,
title and interest over the schedule property could not have
alienated the same in favour of Respondent No.3 and hence, no
title vested with Respondent No.3. It is the further contention
of the Petitioner that Respondent No.3 has colluded with
Respondent No.1- Bank, who has resorted to proceedings
under the provisions of the SARFAESI Act, and the proceedings
initiated infringe upon the rights of the property of the
Petitioner. Hence, he seeks for allowing of the Writ Petition and
granting of the reliefs sought for.
7. The petition is opposed by Respondent Nos.1 and 3.
It is contended on behalf of Respondents that the compromise
decree passed in O.S. No.1605/2007 is the subject matter of
proceedings in O.S. No.4239/2010, in which suit the Petitioner
was arrayed as Defendant No.1 and by judgment and decree
dated 27.02.2017, the said suit was decreed and it was ordered
that the compromise decree passed in O.S. No.1605/2007 is
not binding on the share of the Plaintiffs in the said suit. The
said judgment and decree was challenged by the Petitioner in
RFA No.979/2017 and by a compromise entered into between
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the parties in the said proceedings a decree was passed in the
said RFA and the petition property was once again allotted to
the Petitioner. It is relevant to note that Respondent No.2 who
is the father of the Petitioner was arrayed as Defendant No.3 in
O.S. No.4239/2010 and Respondent No.5 in RFA No.797/2017.
8. It is contended that Respondent No.3 has also filed
a suit in O.S. No.4803/2021 arraying the Petitioner as
Defendant No.2 and the other family members as party
defendants and sought for a declaration that he is the absolute
owner of the suit property along with other reliefs; that in the
said suit interim order of injunction was sought which was not
granted by the Trial Court and this Court in W.P.
No.21137/2021 has restrained the Respondents from allowing
and creating any third party rights in the suit property.
9. It is the further contention of the Respondents that
Respondent No.2 who is the father of the Petitioner, have
colluded with one another and hence Respondent No.2 is not
contesting the present proceedings.
10. It is also contended on behalf of the Respondents
that having regard to Section 17 of the SARFAESI Act, the Writ
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Petition filed by the Petitioner is not maintainable and liable to
be rejected. In support of their contentions, they relied upon
the following judgments:
i) Jagdish Singh Vs. Heeralal and Others1
ii) Sri K. Manjunath and others Vs. M/s.
IDBI Bank Ltd.,2
11. Learned counsel for the Petitioner countering the
submissions made on behalf of Respondents that the Writ
Petition is not maintainable having regard to Section 17 of the
SARFAESI Act, relies upon a Division Bench judgment of this
Court passed in the case of Raghavan S. Vs. Sri N.B. Rajeev3
and submits that as noticed by the Division Bench of this Court,
the questions that arise for consideration as urged by the
Petitioner are beyond the scope of adjudication under Section
17 of the SARFAESI Act.
12. I have considered the submissions made by the
learned counsels and perused the material available on record.
(2014) 1 SCC 479
W.P. No.30933-955/2014 - Order dated 16.10.2015,
RFA No.1947/2016, judgment dated 22.1.2020,
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The question that arises for consideration is 'whether the relief
sought for by the Petitioner is liable to be granted?'
13. It is forthcoming from the contentions urged by the
learned counsel for the parties that the Petitioner is claiming
right, title and interest in the petition schedule property by
virtue of a compromise decree dated 19.8.2008 passed in O.S.
No.1605/2007 and the compromise decree dated 24.4.2019
passed in RFA No.979/2017. On the other hand, Respondent
No.3 claims title to the very same property by virtue of the
registered sale deed dated 30.12.2013 executed by Respondent
No.2 (father of the Petitioner). It is further not in dispute that
the petition property was Mortgaged in favour of Respondent
No.1- Bank and consequent to non payment of amounts due
and payable by Respondent No.3, Respondent No.1 has
initiated the proceedings under the provisions of the SARFAESI
Act, and has issued the auction notice dated 23.08.2021
(Annexure-H to the Writ Petition).
14. It is relevant to note that the compromise decree
passed in O.S. No.1605/2007 was the subject matter of
consideration in the subsequent suit i.e., O.S. No.4239/2010
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which has culminated in the judgment and decree dated
24.4.2019 passed in RFA No.979/2017. It is also relevant to
note that the vendor of Respondent No.3, i.e. Respondent No.2
who is the father of Petitioner, who was also arrayed as
Respondent No.5 in the RFA, before the compromise decree
was passed in the RFA, has executed the registered Sale Deed
dated 30.12.2013 in favour of Respondent No.3. Having regard
to the said facts, the Petitioner and Respondent No.3 being
rival claimants to the property in question, various disputed
questions of fact arise for consideration and the same cannot
be adjudicated upon in proceedings under Article 226 of the
Constitution of India. The right, title and interest in respect of
the property in question between the rival claimants is required
to be adjudicated in appropriate proceedings after a full fledged
trial.
15. Apart from the aforementioned, the present Writ
Petition is filed challenging the sale notice dated 23.08.2021
which is initiated by invoking the provisions of the SARFAESI
Act. The Hon'ble Supreme Court in the case of Jagadish
Singh1 has held as follows:
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"19. The expression 'any person' used in Section
17 is of wide import and takes within its fold not only
the borrower but also the guarantor or any other
person who may be affected by action taken under
Section 13(4) of the Securitisation Act. Reference
may be made to the Judgment of this Court in
Satyavati Tondon's case (2010) 8 SCC 110.
20. Therefore, the expression 'any person' referred
to in Section 17 would take in the plaintiffs in the suit
as well. Therefore, irrespective of the question
whether the civil suit is maintainable or not, under
the Securitisation Act itself, a remedy is provided to
such persons so that they can invoke the provisions
of Section 17 of the Securitisation Act, in case the
bank (secured creditor) adopt any measure including
the sale of the secured assets, on which the plaintiffs
claim interest."
(emphasis supplied)
16. A Co-ordinate Bench of this Court in the case of
K.Manjunath2 has followed the dictum as held in the case of
Jagadish Singh1.
17. The judgment relied on by the learned counsel for
the Petitioner in the case of Raghavan S3 is not applicable to
the facts of the present case, having regard to the fact that a
Division Bench of this Court was considering a case wherein a
suit for declaration of title having been filed and a bank having
entered appearance and filed an application under Order 7
Rule 11 (d) of the Code of Civil Procedure, 1908 seeking for
rejection of the plaint and the said application having been
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allowed, which was the subject matter of the proceedings
before the Division Bench in a Regular First Appeal. In the said
case, the Division Bench has allowed the appeal and remanded
the matter to the trial Court to adjudicate upon the said matter
in accordance with law.
18. The dicta as laid down in the case of Jagadish
Singh1 is squarely applicable to the facts and circumstances of
the present case.
19. Having regard to the aforementioned, the Writ
Petition is dismissed as being devoid of merit.
20. After dismissal of the Writ Petition, learned counsel
for the Petitioner submits that by virtue of the interim order
dated 23.09.2021 granted in the present Writ Petition, the
auction has been conducted and the process of confirmation of
Sale Certificate has not been done during the pendency of the
Writ Petition as the interim order has been extended from time
to time. He further submits that by virtue of the dismissal of
the Writ Petition, the auction sale will be confirmed which would
adversely prejudice the rights of the Petitioner and the
confirmation of the auction sale be put on hold for a limited
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period to enable the Petitioner to avail appropriate remedies
available under law.
21. Having regard to the fact that valuable rights in
immovable property are involved between the parties to the
proceedings, it is expedient that Respondent No.1-Bank shall
not issue the Sale Certificate for a period of two weeks i.e., up
to 04.08.2023.
No costs.
SD/-
JUDGE
BS
