IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL NO.311 OF 2012 (GM-RES) BETWEEN:
M/S. NATIONAL HOUSING BANK CONSTITUTED UNDER THE NATIONAL HOUSING BANK ACT, 1987 (53 OF 1987) WHOLLY OWNED BY THE RESERVE BANK OF INDIA HAVING ITS OFFICE AT CORE-5-A III FLOOR, INDIA HABITAT CENTRE LODHI ROAD, NEW DELHI-110 003 NOW REPRESENTED BY ITS ASSISTANT GENERAL MANAGER.
...APPELLANT (BY SRI: S.R. HEGDE, ADVOCATE) AND:
M/S. MANIPAL HOME FINANCE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS CORPORATE OFFICE AT: NO.57/1, 11TH MAIN ROAD OPPOSITE CLUNY CONVENT MALLESHWARAM BENGALURU-560 003 REPRESENTED BY ITS VICE-PRESIDENT.
(BY SMT:B.V. NIDHISHREE, ADVOCATE) …RESPONDENT THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE REMARKS, OBSERVATION “THAT THE RESPONDENT IN THE SAID PETITION SHALL NOT BE ENTITLED TO ENFORCE THE ORDER DATED 30.11.2006 IN MISCELLANEOUS PETITION NO.1167 OF 2003 WITHOUT SEEKING APPROPRIATE CLARIFICATION FROM THE COMPANY COURT WITH RESPECT TO ITS ORDER DATED 15.10.2004 PASSED IN COMPANY PETITION NO.259 OF 2002 REGARDING ITS RIGHT TO ENFORCE THE ORDER PASSED BY THE SESSION COURT IN MISCELLANEOUS PETITION NO.1167 OF 2003” MADE IN THE ORDER DATED 24.12.2010 PASSED BY LEARNED SINGLE JUDGE IN WRIT PETITION NO.1300 OF 2007 (GM-RES) AND THEREBY, THIS HON’BLE COURT MAY KINDLY BE DISMISS THE SAID WRIT PETITIONS IN TOTAL.
***** THIS WRIT APPEAL COMING ON FOR FINAL HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 24.12.2010 passed in Writ Petition No.1300 of 2007 by the learned Single Judge, in making certain observations while dismissing the writ petition, the respondent therein has filed this appeal.
2. The learned Counsel for the appellant contends that even though the writ petition was dismissed, the learned Single Judge made observations that the respondent in the said petition shall not be entitled to enforce the order dated 30.11.2006 in Miscellaneous Petition No.1167 of 2003 without seeking appropriate clarification from the Company Court with respect to its order dated 15.10.2004 passed in Company Petition No.259 of 2002 regarding its right to enforce the order passed by the Sessions Court in Miscellaneous Petition No.1167 of 2003. Therefore, he contends that having dismissed the writ petition, the question of making such observations may not be right. That the observations are uncalled for.
3. The same is disputed by the learned Counsel for the respondent. She pleads that the observations is in the tune with the settled position of law. Therefore, the observations made is nothing more than re-iteration of law. Therefore, the appellant would not have any right to question the observations made by the learned Single Judge.
4. However, on hearing learned Counsels, we are of the view that appropriate interference is called for. Firstly, is the fact that the writ petition has been dismissed. The writ petitioner is not in appeal. The respondent is in appeal. In view of certain observations made by the learned Single Judge in para 9 of its order, the observations is to the effect of pre-empting the appellant herein from enforcing the order dated 30.11.2006 passed in Miscellaneous Petition No.1167 of 2003 without seeking appropriate clarification from the Company Court etc.
5. We are of the view that this is not an appropriate observation made by the learned Single Judge.
Even though the observations may be in tune with the settled position of law, it is the legal right of the respondent therein to initiate such proceedings as the law permits. It is only on initiation of such proceedings that the writ petitioner would have a cause to question the same. No party can be injuncted from exercising the legal right available to him.
6. Under these circumstances, we are of the view that the said observations requires to be deleted. As stated herein above, the writ petitioner can very well defend himself in any purported action that is sought to be initiated by the appellant herein.
7. For the aforesaid reasons, the appeal is allowed. The observations made by the learned Single Judge in para 9 of the order to the effect that the appellant shall not be entitled to enforce the order dated 30.11.2006 in Miscellaneous Petition No.1167 of 2003 without seeking appropriate clarification from the Company Court with respect to its order dated 15.10.2004 passed in Company Petition No.259 of 2002 regarding its right to enforce the order passed by the Sessions Court in Miscellaneous Petition No.1167 of 2003, is set aside.
Rest of the order is sustained.
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JUDGE JUDGE *bgn/-