IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.673 OF 2019 BETWEEN:
Smt. Bhagyalakshmi R., W/o. Thyagaraju G., Aged about 51 years, Occupation:
R/at No.6/26, Om Shakthi Nilaya, 14th Cross, 10th “C” Main, 6th Block, Rajajinagar, Bengaluru-560010.
(By Sri. K.Murthy, Advocate) AND:
1. Mr. R.B.Keshavamurthy, S/o. Mr. M.Ramaswamy, Aged about 45 years, R/at No.6/26, Om Shakthi Nilaya, 14th Cross, 10th “C” Main, 6th Block, Rajajinagar, Bengaluru-560010.
2. The Authorized Officer, Tamilnadu Mercantile Bank Ltd., Bangalore City Region, (Bangalore City Bench) 19F, Abhinay Theatre Complex, …Appellant B.V.K. Iyengar Road, Bengaluru-560009.
3. Mr. R.Sandeep, S/o. Mr. S.Raju, Aged about 30 years, R/at. 6/27/A, 14th Cross, 10th “C” Main, 6th Cross Rajaji Nagar, Bengaluru-560010.
(By Sri. B.S.Jayanth Krishna, along with ... Respondents Sri. Shakthidhar S. Shankar, Advocate for C/R3) This RFA is filed under Section 96 of CPC against the order dated 13.03.2019 passed on I.A.No.III in O.S.No.4778/2018 on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru City, allowing the I.A.No.III filed under Order VII Rule 11(d) of CPC and dismissing the suit for temporary injunction.
This RFA coming on for admission this day, the Court delivered the following:
JUDGMENT This appeal is filed by the plaintiff in O.S.No.4778/2018 on the file of XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-43). The appellant instituted a suit for injunction to restrain the defendants from dispossessing her without due process of law. In the course of proceedings, defendant No.2 filed an application under Order VII Rule 11(d) of Civil Procedure Code for rejection of plaint. The trial Court came to conclusion that the suit is barred according to Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’ for short) and rejected the plaint. Hence this appeal.
2. It is argued by the appellant’s counsel that the appellant is a tenant under first respondent and now the second respondent is trying to take possession of the schedule property which is in her occupation forcibly under the guise of some proceedings said to have taken place under the provisions of SARFAESI Act. He submits that the appellant cannot be evicted without due process of law.
3. On the other hand, counsel for respondent No.3 submits that the first respondent mortgaged the property to Tamilnadu Mercantile Bank Limited, Bengaluru City Branch for availing some credit facility. Since the first respondent became defaulter, the bank initiated action under SARFAESI Act and then the property was brought to auction, in which, the respondent No.3 purchased the property. The proceedings under Section 14 of the SARFAESI Act has been initiated by the second respondent by filing Criminal Miscellaneous Petition No.2421/2018. The appellant has made an application to get herself impleaded in the said proceedings. Rightly the trial Court has come to conclusion that the suit is not maintainable and therefore, the appeal is to be dismissed.
4. Having heard both the sides, it is to be stated that the appellant is the tenant under the first respondent in respect of the suit property. The second respondent initiated action according to law when the first respondent committed default in paying loan amount. The third respondent purchased property in an auction. Pursuant to an order passed by the concerned authority, the appellant being plaintiff again initiated a suit to restrain the respondent No.2 from taking possession according to law.
Since it is found that already proceedings under Section 14 of the SARFAESI Act has been initiated and that the appellant has made an application there to get herself impleaded, she can pursue her case in the same Court, if she has got any interest in the schedule property. By filing a suit, the plaintiff cannot stall the respondent No.2 from taking action according to law. Rightly the trial Court has come to conclusion that the suit is not maintainable. I do not find any infirmity in the impugned order. Therefore appeal is dismissed.
KMV/-
Sd/- JUDGE