State Bank Of India vs Smt. Jayalakshmamma
2023 Latest Caselaw 2958 Kant

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                                              NC: 2023:KHC:19394-DB
                                                    WA No. 431 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 7TH DAY OF JUNE, 2023

                                     PRESENT
              THE HON'BLE MR. PRASANNA B. VARALE, CHIEF JUSTICE
                                        AND
                        THE HON'BLE MR. JUSTICE M.G.S. KAMAL
                       WRIT APPEAL NO. 431 OF 2023 (GM-RES)


              BETWEEN:

              STATE BANK OF INDIA
              MADDUR BRANCH
              MADDUR TALUK
              MANDYA DISTRICT-571428
              REPRESENTED BY ITS CHIEF MANAGER AND
              AUTHORISED OFFICER
              MR. LAKSHMISHA S.
                                                           ...APPELLANT
              (BY SRI SHETTY VIGNESH SHIVARAM, ADVOCATE)

              AND:
Digitally signed
by K P SWETHA 1.    SMT. JAYALAKSHMAMMA
Location: HIGH      W/O KARIGOWDA
COURT OF            AGED ABOUT 65 YEARS
KARNATAKA           BANNALLI VILLAGE
                    K BELUR POST
                    GOLLARADODDI ROAD
                    MADDUR TALUK
                    MANDYA DISTRICT-571433

              2.    SRI JAYARAJU
                    W/O LATE SRI CHOWDAIAH
                    AGED ABOUT 70 YEARS
                    NO.126
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                                             NC: 2023:KHC:19394-DB
                                                      WA No. 431 of 2023




    CHAMUNDESHWARI NAGARA
    MANDYA CITY -571401
                                                           ...RESPONDENTS
(BY SRI PRADYUMNA M, ADVOCATE FOR C/R2)

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO ALLOW THE ABOVE WRIT
APPEAL AND SET ASIDE THE ORDERS DATED 10/02/2023 AND
24/03/2023 PASSED BY THE LEARNED SINGLE JUDGE OF THIS
HON'BLE COURT IN WP NO.2029/2023 AND ETC.

      THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING       THIS        DAY,      CHIEF    JUSTICE       DELIVERED        THE
FOLLOWING:

                                    JUDGMENT

There is a delay of 32 days in filing the writ appeal and

I.A.No.3/2023 is filed seeking condonation of delay.

For the reasons stated in the affidavit accompanying the

application, the delay is condoned. Accordingly, I.A.No.3/2023

is allowed.

2. This writ appeal is directed against the orders dated

10.02.2023 and 24.03.2023 passed by this Court in

W.P.No.2029/2023.

3. The brief facts of the case are that respondent No.1

approached the appellant -Bank for grant of loan to start a poly

NC: 2023:KHC:19394-DB WA No. 431 of 2023

house. Respondent No.2 stood as guarantor and his house

property was mortgaged against the loan amount. Since the

respondents failed to repay the loan, after following due

procedure under the Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest Act

(SARFAESI), the appellant approached the learned Principal

Senior Civil Judge and Chief Judicial Magistrate, Mandya in

Crl.Misc.No.99/2022 for taking physical possession of the

mortgaged property in order to put the same to auction and to

recover the loan amount. The learned Magistrate, by his order

dated 11.04.2022, held that the appellant -Bank is entitled to

take possession of the property in question towards satisfaction

of the loan amount. Challenging the said order, the

respondents filed W.P.No.2029/2023. By the order dated

10.02.2023, this Court issued emergent notice and granted

interim relief in favour of the respondents staying the order

dated 11.04.2022 passed in Crl.Misc.99/2022 subject to the

respondents depositing 30% of the outstanding amount within

eight weeks i.e., 15% within four weeks from the date of the

order and the remaining 15% within four weeks thereafter. It

was further observed in Clause 3 of the said order that any

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deviation in paying the amount within timeline stipulated, even

at the first instance, would entail vacation of the interim order

and would also run the risk of dismissal of the petition itself.

4. Thereafter, when the matter was listed on

24.03.2023, the learned counsel for the appellant-Bank

submitted that the amount deposited by the respondents would

fall short of 30% that was directed to be paid in terms of the

order dated 10.02.2023. It was further submitted that 30% of

the amount due approximately works out to Rs.45 lakhs,

however, what is paid by the respondents is only Rs.11.5 lakhs.

The learned counsel for the respondents submitted before the

learned Single Judge that the respondents would make

payment of the remainder 30% of the amount due without the

interest accruing till date.

5. By accepting the submission of the learned counsel

for the respondents, the learned Single Judge observed that if

the said amount is paid, the very next day, the possession of

the property shall be delivered by the appellant -Bank to the

respondents without prejudicing the contentions urged in the

petition (Emphasis supplied by us).

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6. Heard the learned counsel for the appellant and the

learned counsel appearing for respondent No.2.

7. The learned counsel for the appellant -Bank

vehemently submits that the appellant-Bank agreed to accept

30% of the amount due only by way of interim measure till the

disposal of the writ petition on merits. He submits that in fact,

the appellant - Bank had filed its response opposing the writ

petition on the ground of maintainability as there is an

efficacious and statutory remedy of filing an appeal before the

Debt Recovery Tribunal against the order dated 10.02.2023.

He, however, submits that the direction of the learned Single

Judge in the order dated 24.03.2023 that on payment of the

amount due, the appellant -Bank shall deliver the possession of

the property on the very next day is as good as granting final

relief sought by the respondents in the writ petition. He submits

that the said direction would certainly cause serious prejudice

to the appellant-Bank whereas, if the writ petition itself is

heard and disposed of on merits expeditiously, it will not cause

prejudice to any of the parties. He further submits that the

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appellant -Bank will not precipitate the matter as the writ

petition is still pending before the learned Single Judge.

8. A perusal of the record indicates that the approach

of the respondents in filing the writ petition is not an

appreciable one as the respondents were earlier represented by

single counsel, however, later, they availed the services of two

different counsel. At this stage, we refrain ourselves from

observing anything on the said aspect.

9. The learned counsel appearing for respondent No.2

submits that in case this Court is considering the submission of

the appellant -Bank for early disposal of the writ petition itself

by the learned Single Judge and is not inclined to order deliver

possession of the property to the respondents, respondent

No.2, whose residential property is mortgaged with the

appellant -Bank, may be permitted to enter his property and

take away his belongings. He further submits that respondent

No.2 undertakes that he will not commit any other act except

removing the belongings from his residential property.

10. After hearing the submissions of the learned

counsel for the appellant -Bank, the learned counsel appearing

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for respondent No.2 and on perusal of the material placed on

record, we are of the opinion that there is considerable force in

the submission of the learned counsel for the appellant -Bank.

As it is an admitted fact that pursuant to the order dated

24.03.2023 passed by the learned Single Judge, the

respondents have deposited 30% of the amount due and as

there is merit in the submission of the learned counsel for the

appellant -Bank that the interim direction to deliver the

possession of the property to respondent No.2 is as good as

granting final relief sought for by the respondents, we request

the learned Single Judge to decide the writ petition itself as

expeditiously as possible and preferably, within four weeks

from today.

11. Needless to state that all contentions are kept open

and the parties shall extend necessary assistance to the Court

for disposal of the writ petition within the stipulated period.

12. The direction issued in the order dated 24.03.2023

in respect of delivery of possession of the property is stayed till

final disposal of the writ petition.

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13. The submission made by the learned counsel for the

appellant -Bank that the appellant -Bank will not precipitate

the matter is taken as an undertaking to this Court.

14. It is made clear that this Court has not expressed

any opinion on the merits of the writ petition.

15. The writ appeal is accordingly disposed of.

16. In view of disposal of the writ appeal, the pending

interlocutory applications do not survive for consideration and

the same are accordingly disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

KPS