IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.56164 OF 2017 (GM-RES) BETWEEN:
Mr. Aboobakkar Beary, S/o Hammabba Beary, Aged about 65 years, Residing at H.No.5-61/2, Zeenath Manzil, Kunjakatta House, Perdoor, Udupi - 576 124.
(By Smt. Kavitha D, Advocate (absent)) AND:
M/s. Abhyudaya Co-operative Bank Limited, R.O. ‘Shambhavi Forutune’ Behind K.S.R.T.C. Bus stand Udupi – 576 101.
(By Sri.A.K. Vasanth, Advocate(absent)) … Petitioner … Respondent This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to set aside the notices dated 06.07.2017, 14.11.2017 and 22.11.2017 under Annexures-A, B and C, and etc.
This Petition coming on for Preliminary Hearing, this day, the Court made the following:-
ORDER None for the petitioner.
2. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner has assailed the validity of the notice dated 06.07.2017 under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘SARFAESI Act’ for short), notice dated 14.11.2017 under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 and notice dated 21.11.2017.
3. This Court vide interim order dated 14.12.2017, had issued notice to the respondents and directed the petitioner to make payment of `1,00,000/- and subject to aforesaid deposit, dispossession of the premises in question was stayed.
4. However, when the matter was taken up today, none appeared on behalf of the petitioner. There is no material on record to show that the entire amount as directed by the Bench of this Court by order dated 14.12.2017 has been deposited as the office note shows that the petitioner has deposited only a sum of `50,000/-.
5. Even otherwise, in view of the judgment laid down by the Hon’ble Supreme Court in ‘UNITED BANK OF INDIA VS. SATYAWATI TONDON AND ORS.’, (2010) 8 SCC 110 while interpreting the provisions of the SARFAESI Act has held that, once the proceedings under SARFAESI Act is initiated by the Bank, efficacious remedy in the form of appeal under Section 17 of the SARFAESI Act is provided to the petitioners and they should avail the same. The aforesaid decision was quoted with approval in the case of ‘AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER vs. MATHEW K.C’, (2018) 3 SCC 85.
Similar view has been taken in ‘KANAIYALAL LALCHAND SACHDEV AND OTHERS vs. STATE OF MAHARASHTRA AND OTHERS’, (2011) 2 SCC 782 and it has been held that an appeal under Section 17 of the SARFAESI Act lies and the High Court was not justified in entertaining the Writ Petition. The aforesaid view is reiterated in ‘AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER (supra).
6. In view of the aforesaid enunciation of law by the Hon’ble Supreme Court, the petition is disposed of with liberty to the petitioner to take recourse to such remedy available under law. It is needless to state that in case the petitioner files such an appeal within a period of ten days from the date of receipt of certified copy of the order passed today, the petitioner shall be entitled to the benefit of principles contained under Section 14 of the Limitation Act, 1963.
Sd/- JUDGE Mds/-