Karnataka High Court
Bharath Kumar Kothari Since By ... vs The Branch Manager on 5 June, 2024
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NC: 2024:KHC-D:7447
WP No. 100976 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 100976 OF 2023 (GM-RES)
BETWEEN:
BHARATH KUMAR KOTHARI,
SINCE BY LRS.,
1. SMT. KANCHAN W/O. BHARATKUMAR KOTHARI,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O. 437 NEAR ROTARY SCHOOL,
STATION ROAD, RANEBENNUR-581115,
DIST: HAVERI.
2. SMT. POONAM W/O. MAHIPAL SURANA,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O. 70/3, SURVEYER STREET,
NEAR LAL BHAG WEST GATE,
BASAVANA GUDI, V.V.PURAM,
BANGALORE-560004.
3. SMT. KARUNA D/O. BHARATKUMAR KOTHARI,
W/O. KUNAL CHAUHAN,
AGE: 31 YEARS, OCC: HOUSEHOLD/ TUITION,
R/O. 437 NEAR ROTARY SCHOOL,
YASHAVANT
NARAYANKAR
STATION ROAD, RANEBENNUR-581115,
DIST: HAVERI.
Digitally signed by
YASHAVANT
NARAYANKAR
Location: HIGH
COURT OF
KARNATAKA,
4. KUMARI VARSHA D/O. BHARATKUMAR KOTHARI,
DHARWAD BENCH
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O. 437 NEAR ROTARY SCHOOL,
STATION ROAD, RANEBENNUR-581115,
DIST: HAVERI.
5. MR. VINOD KOTHARI S/O. JAVATRAJ KOTHARI,
AGE: 51 YEARS, OCC: BUSINESS,
R/O. 437 NEAR ROTARY SCHOOL,
STATION ROAD, RANEBENNUR-581115,
DIST: HAVERI.
6. MR. MAHAVEER KOTHARI S/O. JAVATRAJ KOTHARI,
AGE: 47 YEARS, OCC: BUSINESS,
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NC: 2024:KHC-D:7447
WP No. 100976 of 2023
R/O. 437 NEAR ROTARY SCHOOL,
STATION ROAD, RANEBENNUR-581115,
DIST: HAVERI.
...PETITIONERS
(BY SRI. MADANMOHAN M. KHANNUR, ADVOCATE)
AND:
1. THE BRANCH MANAGER
ICIC BANK LTD.
ABOVE BALAGI COMPUTERS,
SANNAKKI BUILDINGS,
ASHOK NAGAR MAIN ROAD,
RANEBENNUR-581115.
2. THE BRANCH MANAGER,
ICIC HOME FINANCE LTD.,
2ND FLOOR, R.D. BADDI MANISION,
ABOVE KOTAK BANK, DHARWAD HUBLI,
123, D, CLUB ROAD, KARNATAKA-580029.
3. THE AUTHORIZED OFFICER,
ICIC HOME FINANCE COMPANY LTD.,
NO.718, 2ND MAIN, 8TH CROSS,
NEAR BEA HIGH SCHOOL,
NIJALINGAPPA LAYOUT,
NEAR MORE SHOP, DAVANGERE-577004.
...RESPONDENTS
(BY SRI. PRASHANT S. HOSAMANI, ADV. FOR R1;
SRI. S.B. MUTTALLI, SRI. RAJU M, SRI. M.S. NIMBANNAVAR &
SRI. SACHIN C. ANGADI, ADVOCATES FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI QUASHING THE NOTICE DATED 07/07/2022 VIDE
ANNEXURE-D AND D1 ISSUED BY RESPONDENT NO. 3 AND NOTICE
ISSUED BY RESPONDENT NO. 3 DATED 17/08/2022 PUBLISHED IN
THE NEWS PAPER THE NEW INDIAN EXPRESS, 17/08/2022, VIDE
ANNEXURE-E.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 100976 of 2023
ORDER
1. Captioned petition is filed assailing the demand notice
issued by the respondent-Housing Finance under sub-
clause 2 to Section 13 of the Securitization and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short "SARFAESI Act").
2. Sub-clause 2 to Section 13 of the SARFAESI Act authorizes
a secured creditor/Housing Finance to call upon the
defaulter to discharge his liabilities to the secured creditor
within a period of sixty days from the date of receipt of
notice. In the present case on hand, the respondent-
secured creditor, after classifying petitioner's account as
non-performing account, has issued notice on 07.07.2022.
Though this Court by taking a lenient view granted interim
stay subject to deposit of Rs.40 Lakhs by the petitioners,
the order sheet dated 13.03.2024 clearly reveals that the
interim order granted on earlier occasion was not
extended. Section 13 of the SARFAESI Act contemplates
that the borrower is required to discharge his full liabilities
within sixty days. It seems on account of pendency of the
writ petition, the respondent-Housing Finance has not
NC: 2024:KHC-D:7447
taken precipitative action till this date. Almost close to two
years, the petitioner has postponed the creditor's right to
seek recovery.
3. The Hon'ble Apex Court in catena of judgments has held
that an action initiated by the secured creditor should not
be examined by a Writ Court. The Hon'ble Apex Court has
come down heavily on High Courts entertaining petitions
arising out of SARFAESI Act. Since petitioners have
succeeded in postponing the creditor's right to seek
recovery for almost close to two years, no further
indulgence is warranted. However reserving liberty to the
petitioners to make bonafide attempt and repay the
amount by making appropriate request to the respondent-
Housing Finance the petition being devoid of any merits,
stands dismissed.
4. In view of disposal of the petition, pending interlocutory
applications, if any, do not survive for consideration and
are disposed of accordingly.
Sd/-
JUDGE
