IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE B M SHYAM PRASAD WRIT PETITION NO.21731/2018 (GM-RES) & WRIT PETITION NO.22012/2018 Between:
J Hemanth Krishna Aged about 35 years, S/o. Late K. Jyotheeswar Reddy R/at Flat No.302, KJR Paradise 3rd Floor, Site No.32 & 33, Khatha No.382/251/32, Turahalli Village, Uttarahalli Hobli Bengaluru – 560 061.
... Petitioner (By Sri. Saket Bisani, Advocate) And:
1. Sri Nanjundaswamy N Aged about 50 years S/o Sri Nanjappa Nanjaiah Residing at No.11, 11th Cross 2nd Main, Yeshwantpur Bengaluru - 560 022.
2. Can Fin Homes Ltd., No.48, Ground Floor 5th Main Road, Central Excise Layout Shivaram Karanth Nagar Thanisandra, Bengaluru – 560 077. By its Director.
... Respondents (By Sri T.P. Muthanna, Advocate for R2;
Notice to R1 d/w v/o dated 18.01.2019) These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to direct respondents to set aside the possession order dated 09.11.2017 vide Annexure-C and etc.
These writ petitions coming on for Orders this day, the Court made the following:-
ORDER The petitions are filed against the orders of the learned Magistrate impugning the Possession Notice issued by respondent No.2-Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ‘SARFAESI Act’ for short) and the Security Interest (Enforcement) Rules, 2002. The petitioner is challenging such Possession Notice asserting that the petitioner is in actual possession of the subject property as a tenant under respondent No.1. When these matter were listed before this Court on 22.05.2018, while issuing notice to the respondents, this Court directed the respondents not to disturb petitioner’s physical possession of the subject property clarifying that the said order shall not come in the way of respondent No.2 assuming constructive possession of such property and also proceeding against respondent No.1 for recovery.
2. The learned counsel for respondent No.2 – Bank submits that the petitioner’s remedy, if any, would be only under Section 17 (4A) of SARFAESI Act and these writ petitions could be disposed of reserving liberty to the petitioner to file such proceedings under the SARFAESI Act.
3. The learned counsel for respondent No.2 also submits that the interim arrangement provided for by this Court vide order dated 22.05.2018 could be continued until the proceedings are filed by the petitioner under Section 17 (4A) of the SARFAESI Act.
4. The learned counsel for the petitioner, though relies upon the decision of this Court in the case of M/s Remo Software Pvt. Ltd and Others vs. HDB Financial Services Ltd. and Others reported in 2018 (1) KCCR 81, submits that if liberty is granted, while protecting the petitioner’s right to continue in possession until such proceedings are initiated under the SARFAESI Act, the writ petitions could be disposed of.
5. In view of this submission, the following:-
ORDER The petitions are disposed of permitting the petitioner to initiate appropriate proceedings under Section 17 (4A) of the SARFAESI Act, within a period of two weeks from the date of the receipt of certified copy of this order and until then, neither respondent No.2 – Bank nor the persons claiming under respondent No.2 – Bank shall disturb with the petitioner’s actual physical possession of the subject property.
The office is directed to return the original Lease Deed filed along with these petitions to the learned counsel for the petitioner.
In view of the disposal of the main petitions, I.A.No.1/2018 does not survive for consideration. Hence, it is dismissed.
SD/- JUDGE dn/nms