Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.53689 OF 2018 (GM-RES) BETWEEN:
ICICI HOME FINANCE COMPANY LIMITED A PUBLIC COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AHD HAVING ITS REGISTERED OFFICE AT ICICI BANK TOWERS, BANDRA-KURLA COMPLEX, MUMBAI-400051.
HAVING ITS BRANCH OFFICE AT, ICICI HOME FINANCE COMPANY LIMITED, MYTHREE TOWERS, 4/10, HOSUR ROAD, BOMMANAHALLI, BENGALURU-560 068.
REPRESENTED BY ITS AUTHORIZED OFFICER, MR.RAGHAVENDRA P.KATGERI.
(By Mr.MANU KULKARNI ADV.FOR SRI.SANJANTHI SAJAN POOVAYYA ADV.) AND:
1. SAI RAMAKRISHNA KARUTURI SON OF LATE K.SURYA RAO, AGED ABOUT 49 YEARS, RESIDING AT NO.9/56, 8TH MAIN, 1ST CROSS, … PETITIONER UPPER PALACE ORCHARDS, SADASHIVANAGAR, BENGALURU-560080 ALSO AT SAI RAMAKRISHNA, KARUTURI FLAT NO.494 (494-11) 9TH CROSS RAJMAHALVILAS, EXTENSION, BENGLAURU 5600080.
AND AT SAI RAMAKRISHNA KARUTURI, KARUTURI NETWORKS, NO.204, EMBASSY CENTRE, NO.11, CRESCENT ROAD, BENGALURU 560001.
2. ANITHA K WIFE OF MR.SAI RAMAKRISHNA KARUTURI, AGED ABOUT 42 YEARS, RESIDING AT NO.9/56, 8TH MAIN, 1ST CROSS, UPPER PALACE ORCHARDS, SADASHIVANAGAR, BENGALURU-560080 ALSO AT ANITHA K FLAT NO.494 (494-11) 9TH CROSS, RAJMAHALVILAS EXTENSION, BANGALORE-560080 AND AT ANITHA K, KARUTURI NETWORKS, NO.204, EMBASSY CENTRE,NO.11, CRESCENT ROAD, BENGALURU-560001.
3. RAJESH N SON OF VEERA RAGHAVALU N, AGED ABOUT 41 YEARS, RESIDING AT NO.9/56, 8TH MAIN, 1ST CROSS, UPPER PALACE ORCHARDS, SADASHIVANAGAR, BENGALURU-6560080, ALSO AT RAJESH N.FLAT NO.494 (494-11) 9TH CROSS, RAJMAHALVILAS EXTENSION, BENGALURU-560080.
AND AT:
RAJESH N, NO.205, LAKESIDE RESIDENCY, 2ND FLOOR, ANNNASWAMY MUDALIAR ROAD, ULSOOR, BESIDE AJANTA THEATRE, BENGALURU-560042.
4. STATE OF KARNATAKA REPRESENTED BY SADASHIVNAGAR POLICE STATION, 11TH CROSS, SADASHIVANAGAR, BANGALORE-5600080.
(By Mr.V.SREENIDHI AGA FOR R4 MR.ASIM MALIK ADV. FOR R1 & R2 R3 UNREPRESENTED) … RESPONDENTS - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS OF CRIMINAL MISCELLANEOUS NO.283/2017 ON THE FILE OF THE VII ADDITIONAL CHIEF METROPLITAN MAGISTRATE, BANGALORE CULMINATING IN THE ORDER DTD:31.8.2018 AS AT ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Manu Kulkarni for Mr.Sanjanthi Sajan Poovayya, learned counsel for the petitioner.
Mr.V.Sreenidhi, learned Additional Government Advocate for respondent No.4.
Mr.Asim Malik, learned counsel for respondent Nos.1 & 2.
In this Writ Petition under Article 226 of the Constitution of India the petitioner has assailed the validity of the order dated 31.08.2018 passed by the VII Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter referred to as ‘the Tribunal’ for short) under Section 14(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for short) by which the application preferred by the petitioner has been dismissed.
2. Facts giving rise to the filing of the petitions briefly stated are that respondents 1 to 3 had availed a home loan for a sum of Rs.7,10,00,000/- and had provided residential property measuring 7350 Sq.ft. as collateral security. The aforesaid respondents defaulted in repayment of the amount of loan, as a result of which their account was declared as non performing asset on 10.06.2016. A sum of Rs.6,32,73,044/- is outstanding in the loan account of the petitioner as on 26.09.2018. The petitioner initiated proceeding under Section 13(2) of the Act seeking repayment of the amount of loan. Thereafter, the proceeding under Section 13(4) of the Act were initiated seeking possession of the property.
3. The petitioner after facing stiff resistance from respondent Nos.1 to 3 filed an application under Section 14 of the Act on 09.01.2017 seeking the relief of taking physical possession of the property. The Magistrate by an order dated 31.01.2017 allowed the aforesaid application and held that petitioner is entitled to take possession of the schedule property and the police Inspector of jurisdictional police station was directed to give necessary assistance to the petitioner while taking possession of the schedule property. The petitioner on 21.08.2017, along with its authorized officer and with police assistance took physical possession of the property. However, the petitioner was dispossessed on 21.08.2017 by respondents 1 to 3 forcibly. The petitioner thereupon again filed an interlocutory application viz., under Section 14(2) of the Act before the Magistrate. The Magistrate by impugned order dated 31.08.2018 has held that he has already passed an order in exercise of powers under Section 14(2) of the Act and the aforesaid order is in force and therefore, the petitioner cannot seek similar relief in another application. Accordingly, the application was rejected. In the aforesaid factual background, the petitioner has approached this court.
4. Learned counsel for the petitioner submitted that in the proceeding Section 14 of the Act. The Magistrate is bound by the procedure prescribed under Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short) and his functions are structured by provisions of the Code. It is urged that it is not necessary to afford an opportunity of hearing to respondents 1 to 3. It is also submitted that in case the Magistrate was of the opinion that the order under Section 14(2) of the Act still subsists, he ought to have directed police assistance. In support of aforesaid submissions reference has been made decision of ‘THAHIRA VS. FEDERAL BANK LIMITED’, 2016 SCC ONLINE KER 40048, ‘RAMESWARAM COTTONG INDUSTRIES (GUJRAT) PRIVATE LIMITED VS. DISTRICT MAGISTRATE’, 2010 SCC ONLINE GUJ 789, ‘HDB FINANCIAL SERVICES LIMITED VS. M/S REMO SOFTWARE PRIVATE LIMITED’, WRIT APPEAL NOS.6330-6337/2017 & ‘STANDARD CHARTERED BANK VS. V.NOBEL KUMAR’, (2013) 9 SCC 620. On the other hand, learned counsel for the respondent submitted that in proceedings under Section 14 of the Act, provisions of the Act are applicable and therefore, in view of Section 362 of the Code, the court cannot alter its order or judgment and the scope of altering the judgment is confined to correction of clerical or arithmetical errors only. Therefore, the application filed by the petitioner has rightly been rejected. It is further submitted that the petitioner ought to have filed afresh application under Section 14 of the Act and could not have filed an interlocutory application in a disposed of proceeding. It is further submitted that against the impugned order a revision under Section 397 of the Code ought to have been filed. In support of his submissions, reference has been made to decisions in the cases of ‘STATE OF PUNJAB VS. DAVINDER PAL SINGH BHULLAR & ORS.’, (2011) 15 SCC 770, HARI SINGH MANN VS. HARBAJAN SINGH BAJWA & ORS.’, (2001) 1 SCC 169, ‘VISHAL N.KALSARIA VS. BANK OF INDIA & ORS.’, (2016) 3 SCC 762 & ‘T.R.JEWELLERY VS. STATE BANK OF INDIA’, AIR 2016 HYD 125 (FB).
5. I have considered the submissions made on both sides and have perused the record. In the instant case, admittedly against respondents 1 to 3, proceeding under Section 13(4) of the Act was initiated and an order under Section 14(2) of the Act was passed on 31.08.2017. In pursuance of the aforesaid order, the petitioner was placed in possession of the premises in question with the assistance of police on 21.08.2017. However, the respondents 1 to 3 on 31.08.2017 itself dispossessed the petitioner forcibly from the premises in question. Thus, respondents 1 to 3 by taking law in their own hands have forcibly dispossessed the petitioner which is impermissible in law and amounts to negation of rule of law. The possession was taken by the petitioner in accordance with law by taking recourse to Section 14 of the Act. The petitioner could have been dispossessed from the property only in accordance with law or by following the procedure prescribed by law. In India the persons are not permitted to take forcible possession of the property. [See: ’Lallu Yeshwant Singh vs Rao Jagdish Singh & Ors.’, AIR 1968 SC 620.] 6. The respondents 1 to 3 had trespassed into the property and had forcibly dispossessed the petitioner without taking recourse to the law. The aforesaid fact was brought to the notice of the Magistrate. The magistrate should have taken an action to ensure delivery of possession to the petitioner. However, instead of taking effective steps to ensure delivery of possession and despite recording a finding that earlier order passed under Section 14(2) dated 31.08.2017 is in force, has dismissed the application. The inaction on the part of the Magistrate amounts to failure of justice. The Court in such a situation cannot shut its eye and permit the illegality to continue and has to step in to restore the rule of law.
7. So far as submission made by learned counsel for the respondents that in the proceeding Next >