Karnataka High Court
Sudha S vs The Bangalore City Co Operative Bank on 1 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:4376
WP No. 25222 of 2023
C/W WP No. 26973 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 25222 OF 2023 (GM-RES)
C/W
WRIT PETITION NO. 26973 OF 2023 (GM-RES)
IN W.P.No.25222/2023:
BETWEEN:
SUDHA S
W/O THIMMEGOWDA
AGED ABOUT 42 YEARS
R/O NO.814, 4TH MAIN
BEHIND ANJANEYA TEMPLE
GANGONDANA HALLI
BANGALORE-560 039
... PETITIONER
(BY SRI. SYED AMEER, ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K THE BANGALORE CITY CO OPERATIVE BANK
Location: HIGH SITUATED AT NO.3, PAMPAMAHAKAVI ROAD
COURT OF CHAMARAJAPET
KARNATAKA
BANGALORE-560018
REP. BY ITS AUTHORIZED SIGNATORY
MR. APPAJAIAH
... RESPONDENT
(BY SRI. K.V. LOKESH, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDING
INITIATED AGAINST THE PETITIONER BY THE RESPONDENT BANK
AFTER CAUSING STATUTORY NOTICES DTD 20.08.2022 VIDE
ANNEXURES-B AND C AS THE SAID NOTICES ARE WAVED IN EYE OF
LAW; QUASH THE ENTIRE PROCEEDINGS IN THE PENDING CASE
-2-
NC: 2024:KHC:4376
WP No. 25222 of 2023
C/W WP No. 26973 of 2023
FILED BY THE RESPONDENT BANK BEFORE THE HONBLE 8TH ADDL
CHIEF METROPOLITAN MAGISTRATE COURT, BANGALORE IN
CRL.MIS.5727/2023 AT ANNEXURE-K INVOKING THE PROVISIONS
OF THE SECTION 14 OF THE SECURITIZATION AND
RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF
SECURITY INTEREST ACT 202 AND PASS ORDERS DIRECTING THE
RESPONDENT BANK TO GRANT AT LEAST 2 YEARS TIME TO REPAY
THE BALANCE AMOUNT OF LOAN AMOUNT PAYABLE BY THE
PETITIONER AS THE NOTICES ISSUED DTD 20.08.2023 ARE
ILLEGAL, ARBITRARY AND CONTRARY TO SECTION 13(2) OF
SARFAESI ACT 2002 AND ETC.
IN W.P.No.26973/2023:
BETWEEN:
SUDHA S
W/O THIMMEGOWDA
AGED ABOUT 42 YEARS
R/O NO.814, 4TH MAIN
BEHIND ANJANEYA TEMPLE
GANGONDANA HALLI
BANGALORE-560 039
... PETITIONER
(BY SRI. SYED AMEER, ADVOCATE)
AND:
THE BANGALORE CITY CO OPERATIVE BANK
SITUATED AT NO.3, PAMPAMAHAKAVI ROAD
CHAMARAJAPET
BANGALORE-560018
REP. BY ITS AUTHORIZED SIGNATORY
MR. APPAJAIAH
... RESPONDENT
(BY SRI. K.V. LOKESH, ADVOCATE)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
PUBLIC SALE NOTICE OF IMMOVABLE PROPERTY, DATED OF SALE
05/01/2024 IN BANK NO.BCCB/AO/SARFAESI/60/23 AT ANNEXURE F
AS THE SAME IS WITH OUT AUTHORITY OF LAW AND IN TOTAL
CONTRAVENTION OF THE PRINCIPLES OF NATURAL JUSTICE BESIDE
AND PASS SUITABLE ORDER KEEPING IN MIND THE PETITIONER IS
READY TO REDEEMED THE PROPERTY AND ETC.
-3-
NC: 2024:KHC:4376
WP No. 25222 of 2023
C/W WP No. 26973 of 2023
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner in W.P.No.25222/2023 is before this Court
seeking the following prayer:
" (i) ISSUE A WRIT OF CERTORARI QUASHING:
a) The proceeding initiated against the Petitioner
by the Respondent Bank after causing statutory
notices dated 20.08.2022 (vide Annexures B & C) as
the said notices are waved in eye of law.
b) Quash the entire proceedings in the pending
case filed by the Respondent Bank before the Hon'ble
8th Addl Chief Metropolitan Magistrate Court,
Bangalore in Crl.Mis 5727/2023 at Annexure K
invoking the provisions of the section 14 of the
Securitization and Reconstruction of Financial Assets
and Enforcement of Security Interest Act 2002 and
pass orders directing the Respondent Bank to grant at
least 2 years time to repay the balance amount of
loan amount payable by the petitioner as the notices
issued dated 20.08.2023 are illegal, arbitrary and
contrary to section 13(2) of SARFAESI ACT 2002.
(ii) Issue a Writ of Mandamus or any other
appropriate Writ, or order or direction, directing the
Respondent Bank to withdraw all the proceedings
initiated against the petitioner with a further direction
to get the petition filed in Crl.Mis.5727/2023 filed
before the Hon'ble 8th Addl Chief Metropolitan
Magistrate Court, Bangalore voluntarily at Annexure k.
(iii) PASS SUCH other appropriate order or orders as
deem fit and proper by this Hon'ble Court in the facts
and circumstances of the case, to meet the ends of
justice;"
NC: 2024:KHC:4376
2. Heard the learned counsel Sri.Syed Ameer,
appearing for the petitioner and the learned counsel
Sri.K.V.Lokesh, appearing for the respondent.
3. The petitioner is the borrower, borrowed finance
from the respondent - Bank, does not make any payment. The
loan becomes sticky. The Bank initiates proceedings under the
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short
'SARFAESI Act') and issues a demand notice and possession
notice, which is appended to the petition. This Court, on
28.11.2023 had passed the following order:
" The petitioner is before this Court seeking the
following prayers:
"WHEREFORE, the petitioner most respectfully
prays that this Hon'ble Court be pleased to call for the
relevant records from the Respondent Bank and grant
the following relief;
(i) ISSUE A WRIT OF CERTORARI QUASHING:
a) The proceeding initiated against the Petitioner by
the Respondent Bank after causing statutory notices
dated 20.08.2022 (vide Annexures B & C) as the
said notices are waved in eye of law.
b) Quash the entire proceedings in the pending case
filed by the Respondent Bank before the Hon'ble 8th
Addl Chief Metropolitan Magistrate Court, Bangalore in
Crl.Mis 5727/2023, at Annexure-K invoking the
provisions of the section 14 of the Securitization and
Reconstruction of Financial Assets and Enforcement of
NC: 2024:KHC:4376
Security Interest Act 2002 and pass orders directing
the Respondent Bank to grant at least 2 years time to
repay the balance amount of loan amount payable by
the petitioner as the notices issued dated 20.08.2023
are illegal, arbitrary and contrary to section 13(2) of
SARFAESI ACT 2002,
(ii) Issue a Writ of Mandamus or any other appropriate
Writ, or order or direction, directing the Respondent
Bank to withdraw all the proceedings initiated against
the petitioner with a further direction to get the
petition filed in Crl.Mis.5727/2023 filed before the
Hon'ble 8 Addl Chief Metropolitan Magistrate Court,
Bangalore voluntarily at Annexure-K.
(iii) PASS SUCH other appropriate order or orders as
deem fit and proper by this Hon'ble Court in the facts
and circumstances of the case, to meet the ends of
justice;"
Learned counsel appearing for the petitioner
submits that it is covered by a judgment rendered by
the Apex Court in the case of VISHAL N. KALSARIA V.
BANK OF INDIA AND OTHERS reported in Criminal
Appeal No.52/2016 (Arising out of SLP (Crl.)
No.8060/2015).
The said judgment would not be applicable to the
facts of the case, prima facie.
Therefore, there shall be an interim order of stay
of further proceedings by the Bank, subject to the
condition that the petitioner shall deposit 25% of the
amount in two installments:
a) In the next 4 weeks, the petitioner shall
deposit 15% of the amount; and
b) In 4 weeks thereafter, remaining 10% of
the amount.
NC: 2024:KHC:4376
c) In the event the petitioner would not
deposit 15% in the next 4 weeks, it is open
for the Bank to take possession of the
property in accordance with law and take
the proceedings under the SARFAESI Act,
2002 to its logical conclusion.
The order shall be issued only after complying
with the office objections.
The petitioner was directed to deposit 25% of the amount
so demanded in the impugned demand notices.
4. The learned counsel appearing for the respondent -
Bank Sri.K.V.Lokesh submits that not even a rupee is paid
pursuant to the order dated 28.11.2023. Therefore, there was
blatant breach of the order. The very same borrower
approaches this Court in W.P.No.26973/2023. The prayer that
is sought in the petition reads as follows:
"A) issue a Writ of Certorari or any Other Appropriate
Writ order or direction to quash the impugned Pubic sale
Notice of Immovable property, date of sale 05.01.2024 in
BANK NO.BCCB/AO/SARFASI/60/23 at Annexure F as the
same is with out authority of law and in total contravention
of the principles of natural justice beside and pass suitable
order keeping in mind Petitioner is ready to redeemed the
Property.
B) Issue a Writ of Mandamus or any other appropriate
Writ, or order or direction, directing the Respondent Bank
to withdraw all further proceedings of Public sale Notice of
Immovable Property NO. In BCCB/AO/SARFASI/60/23,
date of public sale 05.01.2024 at Annexure F and restored
the evicted tenants in respect of impugned public sale
NC: 2024:KHC:4376
notice after for setting aside order passed by Hon'ble 8th
Addl.Chief Metropolitan Magistrate Bangalore in
C.Mis.No.2052/2023.
c) Pass such other appropriate order or orders as deems fit
and proper by this Hon'ble Court in the facts and
circumstances of the case to meet the ends of justice."
The borrower is the same. The subject property also
remains the same, as was challenged in the earlier order.
5. On a perusal of the entire writ petition, not even a
whisper about the earlier petition filed by the petitioner in
W.P.No.25222/2023. The learned counsel for the petitioner
projects it to be a different cause of action and therefore, he
need not divulge the writ petition earlier filed and the interim
order earlier granted.
6. The submission does not merit any acceptance.
There is material suppression on the part of the petitioner for
not having divulged W.P.No.25222/2023. This Court, accepting
the submission of the learned counsel, granted an interim order
in W.P.No.26973/2023 on 06.12.2023, which reads as follows:
" Heard the learned counsel for the petitioner.
Sri K.V.Lokesh, learned counsel is directed to
accept notice for the respondent - bank.
NC: 2024:KHC:4376
The petitioner is before this Court calling in
question a sale notice dated 28.11.2023, indicating
that the sale of the property would be conducted on
05.01.2024. The amount in due as indicated in the
sale notice is Rs.61,41,308/-.
Therefore, the petitioner shall deposit 10% of
the due amount as indicated in the sale notice, on or
before 02.01.2024.
In the event the petitioner would not deposit
any amount as indicated hereinabove, the sale shall
go on and the sale shall be taken to its logical
conclusion.
In the event, the petitioner would fulfill the
interim order granted today, the bank shall consider
for restoration of the possession to the hands of the
petitioner."
7. Learned counsel Sri.K.V.Lokesh, moves the matter
on the contention that the petitioner had mislead the Court in
taking the interim order on a second occasion, without
complying or divulging the pending proceedings and
non-compliance of the interim order so granted earlier on
28.11.2023.
8. The petitioner at this juncture seeks to withdraw
both the petitions, by a lengthy memo. None of the contents of
the memo are taken note of, by the Court, owing to the
conduct of the petitioner.
NC: 2024:KHC:4376
9. Therefore, recording the aforesaid reasons, the
petitions are permitted to be withdrawn and it is withdrawal
simpliciter, with no observation, again owing to the conduct of
the petitioner.
10. If the Bank has restored possession on the strength
of the interim order, it is for the Bank to take possession in a
manner known to law. The petitioner is always at liberty to
avail of such remedy, as is available in law.
11. In the light of the withdrawal memo filed, this Court
is holding its hands in imposing exemplary cost upon the
petitioner.
With the aforesaid observations, the writ petitions are
disposed as withdrawn.
Sd/-
JUDGE
KG
