IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.1525 OF 2017 (GM-DRT) BETWEEN:
M.SURESH AGED 56 YEARS SON OF LATE R.MUNIYAPPA PROPRIETOR M/S. PUSHPA FLORITECH NO.193/11, 1ST MAIN ROAD, BUNDEMUTTA ROAD BEHIND SATELLITE TOWN BENGALURU– 560 060. ...APPELLANT (BY SRI. RAJENDRA M.A., ADVOCATE) AND:
1. THE MANAGER, CANARA BANK M-BLOCK, UNITY BUILDING J.C.ROAD, BENGALURU–560 002.
2. THE AUTHORISED OFFICER AND THE CHIEF MANAGER CANARA BANK HI-TECH AGRICULTURE FINANCE BRANCH M-BLOCK, UNITY BUILDING. J.C.ROAD, BENGALURU-560 002.
3. K.M.GOPALASWAMY MAJOR, (AUCTION PURCHASER) NO.1952, 8TH MAIN “E’ BLOCK, II STAGE RAJAJINAGAR BENGALURU –560 010.
ALSO AT:
3(a) K.M.GOPALASWAMY NO.298, 5TH MAIN ROAD KENGERI SATELLITE TOWN BENGALURU – 560 060. …RESPONDENTS (BY SRI. M.R.SHASHIDHAR, ADVOCATE FOR RESPONDENT No.2 RESPONDENT Nos.1 AND 3 ARE SERVED) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.36400/2016 DATED 18/08/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 18.08.2016 passed by the learned Single Judge in W.P.No.36400 of 2016, by which the petition was disposed off as being devoid of merit, the writ petitioner is in appeal.
2. The petitioner filed petition under Articles 226 and 227 of the Constitution of India, praying to set aside the order dated 31.03.2016 passed in IR.No.1475 of 2015 by the Debts Recovery Tribunal, Bengaluru. The petitioner had challenged the auction sale notice in SA.No.176 of 2012 before the Debts Recovery Tribunal by filing application under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SARFAESI Act’). Along with the appeal, the petitioner had filed I.A.No.2023 of 2015 seeking condonation of delay of 1167 days. The Tribunal dismissed the said I.A.No.2023 of 2015 and consequently I.R.No.1475 of 2015. The petitioner proprietor of M/s.Pushpa Floritech, borrowed loan from 1st respondent-Bank. The petitioner could not repay the loan taken by it, which resulted in respondent–Bank initiating action under the provisions of the SARFAESI Act, 2002. The respondent–Bank issued notice under Section 13(2) of SARFAESI Act, 2002 on 23.09.2009 and issued possession notice on 11.12.2009. Subsequently, the respondent-Bank issued sale notice on 31.01.2012 in respect of mortgaged property. The petitioner challenged the same in S.A.No.176 of 2012. The said appeal filed by the petitioner came to be dismissed on 11.05.2012. The respondent–Bank had also filed O.A.No.115 of 2010 for recovery of dues which was allowed on 26.09.2012. Prior to challenging the sale notice, the petitioner had also filed S.A.No.86 of 2010 challenging the possession notice dated 11.12.2009, which came to be dismissed on 08.12.2011. Thereafter, in the year 2015 the petitioner filed I.R.No.1475 of 2015 under Section 17 of the Act; since there was delay he also filed I.A.No.2023 of 2015 seeking condonation of delay of 1167 days. The Tribunal, by order dated 31.03.2016, rejected I.A.No.2023 of 2015 for condonation of delay and consequently dismissed I.R.No.1475 of 2015. The petitioner, aggrieved by the said order filed instant writ petition challenging the same. The learned Single Judge rejected the plea of the petitioner that he was ignorant of the fact of taking possession and sale of the mortgaged property and thus disposed off the writ petition. Hence, the petitioner is in appeal.
3. Heard the learned counsel for the appellant and learned counsel for the respondent-Bank. Perused the appeal papers.
4. Learned counsel for the appellant would submit that the learned Single Judge as well as the Debts Recovery Tribunal, committed an error in dismissing the writ petition and the application for condonation of delay respectively. It is contended that the Tribunal failed to appreciate the factual position and further failed to appreciate the specific contention that the petitioner was not aware of the proceedings initiated by the respondent–Bank under the Act. The learned counsel further submits that the respondent–Bank has played fraud on the appellant by taking signature on the blank papers. Hence, it is his submission that the delay ought to have been condoned and appeal ought to have been considered on merits.
5. Per contra, learned counsel for the respondent-Bank submits that the petitioner has not approached the Tribunal and this Court with clean hands. The petitioner has suppressed the fact of approaching the Tribunal at every stage of the proceedings. Hence, the learned Single Judge has rightly rejected the writ petition and sought for dismissal of the appeal.
6. Having heard the learned counsels for the parties and on perusal of the appeal papers, we are of the view that the learned Single Judge has rightly rejected the writ petition in the facts and circumstances of the case. The petitioner who is a proprietor of M/s. Pushpa Floritech, a proprietary concern availed loan from the respondent– Bank. As the petitioner failed to repay the loan, the respondent–Bank initiated recovery proceedings. The Bank issued notice under Section 13(2) of the SARFAESI Act and also issued possession notice dated 11.12.2009. Immediately, the petitioner approached the Tribunal by filing S.A.No.86 of 2010, which came to be dismissed on 08.12.2011. Thereafter, the respondent–Bank issued sale notice dated 31.01.2012. The petitioner filed application before the Tribunal under Section 17 of the Act in S.A.No.176 of 2012 challenging the sale notice. The said S.A.No.176 of 2012 was dismissed by order 11.05.2012. Against the dismissal of S.A.No.176 of 2012 the petitioner filed W.P.No.18908 of 2012 before this Court, which was dismissed as withdrawn on 03.12.2013. When the matter stood thus, the petitioner filed I.R.No.1475 of 2015 under Section 17 of the SARFAESI Act seeking to declare that all the measures initiated by the respondent-Bank under the Act are illegal and also seeking to set aside the auction sale notices and to set aside the sale confirmation and sale certificate issued in respect of schedule property. Along with the appeal, the petitioner also filed application for condonation of delay of 1167 days in filing the appeal. The cause shown for condonation of delay was that the petitioner is an illiterate agriculturist and he came to know about the sale proceedings and issuance of sale certificate on 18.03.2015 and immediately he has filed the appeal.
7. From the sequence of events stated above, it would indicate that the petitioner was aware of the recovery proceedings initiated from the beginning. It is not open for the petitioner to contend that he was not aware of the sale proceedings and issuance of sale certificate since, the petitioner had challenged issuance of possession certificate as well as sale notice dated 31.01.2012. Having failed before the Tribunal, the petitioner had also filed writ petition before this Court in W.P.No.18908 of 2012 which was dismissed as withdrawn. When the above facts are on record, the plea of the petitioner that he was not aware of the sale proceedings cannot be accepted. The learned Single Judge has observed that as the petitioner was litigating with regard to the recoveries initiated by the respondent–Bank, the petitioner cannot claim ignorance. We find no error or perversity in the order passed by the learned Single Judge.
8. No good ground is made out by the appellant to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed.
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JUDGE JUDGE SMJ CT:bms