IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.13171/2016 (GM-RES) BETWEEN:
KUM. D.SRILEKHA D/O DORAISWAMY AGE 23 YEARS R/AT NO.469, 3RD FLOOR 3RD MAIN SHASTRINAGAR BANGALORE – 560 028 …PETITIONER (BY SRI.R.CHANNAKESHAVA, ADV. FOR SRI. N.SURESHA, ADV.) AND:
1. FEDERAL BANK LTD SRI. MALLIKARJUNA NILAYA NO.20/1, GROUND FLOOR OP. B.S.MADHARAO CIRCLE KANAKAPURA MAIN ROAD BASAVANAGUDI BANGALORE – 560 004 REPRESENTED BY AUTHORIZED OFFICER 2. MR. SURESH KUMAR B.A S/O B.M.ASWATHNARAYANASETTY AGE 53 YEARS R/AT NO.469, 2ND FLOOR 3RD MAIN SHASTRINAGAR BANGALORE – 560 028 3. SMT.V.L.KALPANA W/O MR.SURESH KUAMR B.A AGE 49 YEARS R/AT NO.469, 2ND FLOOR 3RD MAIN SHASTRINAGAR BANGALORE – 560 028 …RESPONDENTS (BY SRI.VIJAY KUMAR.V., ADV. FOR R1;
R2 AND 3 ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT TO R-1 NOT TO TAKE PHYSICAL POSSESSION OF THE WRIT PETITION SCHEDULED PROPERTY AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court seeking issue of mandamus to direct the respondent No.1 not to take physical possession of the petition schedule property.
2. The fact that the respondent No.1-Bank has advanced loan to the respondents No.2 and 3 and in that regard, action has been initiated in terms of the provisions as contained in the SARFAESI Act is not in dispute.
3. The petitioner claims to be a tenant in respect of the petition schedule property. The learned counsel for the respondent would submit that the very nature of the claim as made by the petitioner is not justified since according to the respondent No.1, the very tenancy as has been claimed by the petitioner is under a document which has been fabricated for the said purpose.
4. In a matter of the present nature where the petitioner claims to be a tenant in respect of the petition schedule property and while a dispute in that regard is raised by respondent No.1, I am of the opinion that such disputed facts need not be adverted to in a writ proceedings. In any event, through Sub-section 4-A to Section 17 of the SARFAESI Act, the petitioner has the remedy of appeal before the Debts Recovery Tribunal (‘DRT’ for short) even in respect of tenancy and leasehold rights, if the petitioner is able to establish the same before the DRT.
5. In that light, liberty is reserved to the petitioner to avail the remedy of appeal. In that regard, since, this Court at the first instance had granted the interim order, the petitioner would have the benefit of the same till the DRT takes up the appeal to be filed by the petitioner, subject to the condition that the petitioner shall file such appeal within three weeks from this day. All contentions on merits are left open in that regard.
The petition is accordingly disposed of.
Sd/- JUDGE ST