IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.49729/2019(GM-DRT) BETWEEN:
DR. LEVINE MEMORIAL HOSPITAL, PARTNERSHIP FIRM No. 17/1, SARJAPURA MAIN ROAD, BELLANDUR GATE, BENGALURU – 560034. REPRESENTED BY ITS PARTNER MRS. SHABRIN TAJ.
...PETITIONER (BY SRI R.S. RAVI, ADVOCATE FOR SRI RAJENDRA M. A., ADVOCATE) AND:
THE AUTHORISED OFFICER M/S FULLERTON INDIA CREDIT COMPANY LTD., NO. 37, 2ND FLOOR, BRAMHANANDA COURT, LALBAGH MAIN ROAD, BENGALURU – 560027.
…RESPONDENT (BY SRI AMIT DESHPANDE, ADVOCATE FOR SRI V. SURESH, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE IMPUGNED ORDERS PASSED BY THE HON’BLE DRT-II, BANGALORE IN I.A. No.2066/19 IN D.No.2010/2019 DATED 17.9.2019 ONLY IN SO FAR IMPOSING CONDITION TO DEPOSIT THE AMOUNT- ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner filed the present writ petition for a writ of certiorari to quash the order dated 17.9.2019 on I.A. No.2066/2019 in D.No.2010/2019 on the file of the Debts Recovery Tribunal – II, Karnataka, Bangalore, thereby the Tribunal stayed the operation and execution of the order dated 31.1.2019 passed in Crl.Misc. No.554/2018 by the learned Chief Judicial Magistrate, Rural Court, Bengaluru, in respect of the schedule property subject to the condition that the petitioner shall pay a sum of Rs.50,00,000/- on or before 4.10.2019 into the loan account with the respondent.
2. It is the case of the petitioner that he has availed the Term loan to an extent of Rs.24,71,659/- and a sum of Rs.2,01,03,203/- towards Home loan as on 28.8.2014 from the respondent - bank. The petitioner though made substantial payments, on account of demonetization and tax policies, and in particular setting up of other clinics/hospitals nearby area, incurred heavy loss in their profession as well as in their line of business. Therefore, the account was classified as ‘Non-performing Asset’ (‘NPA’ for short). The respondent – bank approached the Chief Metropolitan Magistrate to take physical possession, who has passed orders under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act’ for short) made in Crl.Misc. No.554/2018. Being aggrieved by the said order, the petitioner filed appeal before the DRT-II, Bangalore in D.No.2010/2019 along with I.A. No.2066/2019 seeking exparte stay. The DRT considering the material on record, by the impugned order dated 17.9.2019 granted interim stay as prayed for, subject to the condition that the petitioner shall deposit a sum of Rs.50,00,000/- on or before 4.10.2019. Hence, the present writ petition is filed for the relief sought for.
3. This Court while issuing notice to the respondent on 14.10.2019, has directed the respondent not to precipitate the matter and the interim order continued from time to time and the same is existing till today.
4. The respondent filed I.A. No.1/2019 for vacating stay mainly contending that the very writ petition filed against the interim order of stay passed by the DRT subject to payment of certain amount, is not maintainable and question of granting interim stay does not arise. It is further contended that the Hon’ble Supreme Court in the case of Authorized Officer, State Bank of Travancore and Another vs. Mathew K.C. reported in (2018)3 SCC 85 held that the very writ petition filed against the order passed by the DRT under the provisions of Section 13(2) or 13(4) of the SARFAESI Act, is not maintainable. It is further contended that as on the date of application filed before the DRT, a sum of Rs.5,03,00,000/- is due and the DRT is justified in directing the petitioner to pay a sum of Rs.50,00,000/- while granting the interim order. Therefore, sought to vacate the interim order and dismiss the writ petition.
5. I have heard the learned counsel for the parties to the lis.
6. Sri R.S. Ravi, learned counsel for the petitioner after arguing the matter for some time, on instructions fairly submits that the petitioner is ready and willing to deposit a sum of Rs.25,00,000/- (Rupees twenty-five lakhs only) within a period of one week from today and the DRT may be directed to dispose off the application within the time stipulated under the provisions of Section 17(5) of the SARFAESI Act.
7. Sri Amit Deshpande, learned counsel for the respondent – bank submits that the petitioner is due to the bank as on today a sum of Rs.5,28,00,000/- and though the petitioner has not complied the interim order passed by this Court, if the petitioner deposits a sum of Rs.25,00,000/- (Rupees twenty-five lakhs only) within one week from today, the DRT may be directed to dispose off the application on merits in accordance with law. The said submission is placed on record.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioner had borrowed a loan from the respondent – bank and as on the date of the application filed before the DRT, the petitioner was due to the bank a sum of Rs.5,03,00,000/-. Therefore, the bank was forced to invoke the provisions of Section 14 of the SARFAESI Act. Accordingly, the learned Magistrate exercising the powers under Section 14 of the SARFAESI Act directed to take possession.
9. It is also not in dispute that against the order passed in Crl.Misc.554/2018, the petitioner filed appeal in D.No.2010/2019 and also filed interlocutory application for stay. The DRT granted discretionary order of interim stay directing the petitioner to pay a sum of Rs.50,00,000/- on or before 4.10.2019. Normally this Court will not interfere with such discretionary order passed by the DRT, that too when the amount due is Rs.5,03,00,000/-. But, taking into consideration the fair submissions made by the learned counsel for the petitioner and in the interest of justice of both the parties, it is suffice to pass the following order.
10. The DRT is hereby directed to dispose off the application on merits within the time stipulated under the provisions of Section 17(5) of the SARFAESI Act subject to the petitioner depositing a sum of Rs.25,00,000/- (Rupees twenty five lakhs only) within a week from today, failing which it is always open for the DRT to proceed in accordance with law.
11. If deposit is made as stated supra, the interim order granted by this Court earlier will enure to the benefit of the petitioner till the disposal of the application by the DRT.
Accordingly, the writ petition is disposed off.
Sd/-
JUDGE Gss/-