IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL No.2263/2019 (GM-DRT)
BETWEEN:
1. M/S. R.L. CHEMICALS (P) LTD., 102 GREENFIELD APARTMENT, NO.3, PRIME STREET, LANGFORD TOWN BENGALURU-560025 REPRESENTED BY ITS DIRECTOR SRI B A LAKSHMAN AGED ABOUT 51 YEARS S/O LATE SRI ANJANAPPA 2. SRI B A RAM AGED ABOUT 51 YEARS, S/O LATE SRI ANJANAPPA RESIDING AT 102 GREENFIELD APARTMENT, NO.3, PRIME STREET, LANGFORD TOWN BENGALURU-560025 3. SRI B A LAKSHMAN AGED ABOUT 51 YEARS, SON OF LATE SRI ANJANAPPA 102 GREENFIELD APARTMENT, NO.3, PRIME STREET, LANGFORD TOWN BENGALURU-560025 (BY SRI. MOHAMMED MUJASSIM, ADVOCATE )
AND:
1. M/S VIJAYA BANK A.R.M. BRANCH, SHRUTHA COMPLEX, ... APPELLANTS NO.19, PRIMEROSE ROAD, BENGALURU-560025 REPRESENTED BY ITS BRANCH MANAGER 2. RECOVERY OFFICER-2 DEBT RECOVREY TRIBUNAL - II GOVERNMENT OF INDIA, MINISTRY OF FINANCE, LIC JEEVAN MANGAL, BUILDING NO.4 RESIDENCY ROAD BENGALURU-560025 3. C G RAJESH KARAMBAIAH MAJOR S/O C G GANAPATHY FLAT NO.102, 2ND FLOOR, GAYATHRI OMNEST APARTMENTS, AMBEDKAR LAYOUT, KAVALBYRASANDRA R.T.NAGAR, BENGALURU-560032.
... RESPONDENTS THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE HIGH COURT ACT READ WITH ARTICLES 226 AND 227 OF THE CONSTITUTIN OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 25.03.2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.No.26976/2017 AND TO ALLOW THE WRIT PETITION FILED BY THE APPELLANT AS PRAYED FOR IN W.P.No.26976/2017 & ETC., THIS WRIT APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:-
JUDGMENT On 16th July 1996, the Debt Recovery Tribunal passed an order against the appellants directing them to pay Rs.44,14,434/- along with future interest to the first respondent which is a Nationalised Bank. The order of attachment of the property of the second and third appellants was made on 24th September, 1996. The Sale Proclamation was issued as long back as on 22nd June, 2009. For various reasons, auction did not take place on the basis of the said Sale Proclamation and there was a second Sale Proclamation issued by the Special Recovery Officer on 11th November, 2016. On 15th December, 2016, the first respondent rejected the prayer of the appellants to sell the mortgaged property by a private treaty. Bidding was held on 16th January, 2017. Third respondent was declared as the highest bidder. On 22nd June, 2017, after lapse of six months, the present appellants filed writ petition before the learned Single Judge.
2. By the impugned order, the learned Single Judge declined to exercise the discretion vested him under Articles 226 and 227 of the Constitution of India by holding that an efficacious remedy is available to the petitioners under Section 30 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. In fact, time of four weeks was granted by the learned Single Judge to the appellants to prefer an appeal. The learned Single Judge also noted that the Sale Certificate has already been issued.
3. The submission of the learned counsel appearing for the appellants is that as there is a breach of principles of natural justice, as per the settled law, a writ Court can always entertain a writ petition notwithstanding the availability of statutory remedy. He invited our attention to a letter dated 15th December, 2016 addressed by the first respondent to the second appellant in his capacity as the Managing Director of the first appellant. By the said letter, the request made by the appellants to pay One Time Settlement amount after selling the mortgaged property under private treaty was rejected. He urged that the said letter was sent to an incorrect address. He invited our attention to the Sale Proclamation dated 22nd June, 2009 and the address mentioned therein. He also invited our attention to the address mentioned in the Sale Proclamation dated 11th November, 2016. He, would, therefore submit that in view of breach of principles of natural justice, the writ petition ought to have been entertained. His second submission is that reduction of reserved price is completely illegal.
4. We have carefully considered the submissions.
5. There is no dispute about the preposition of law canvassed by the learned counsel appearing for the appellants about the jurisdiction under Article 226 of the Constitution of India. There is no dispute that on 22nd June, 2009, the Proclamation of Sale of mortgaged property was firstly issued. The appellants were aware about the said Proclamation. The appellants were aware about the second Sale Proclamation on 11th November, 2016, in as much as, by a letter dated 17th October, 2016, the appellants requested the first respondent- Bank to permit the sale of the mortgaged property by private negotiations. As noted earlier, on 16th January, 2017, the third respondent was declared as the higher bidder.
6. The argument on the breach of principles of natural justice is based on failure to serve the letter dated 15th December, 2016 (Annexure-E to the petition). We have carefully perused the said letter. The letter records that way back on 26th July, 2014, One Time Settlement (OTS) was sanctioned by the first respondent-Bank. It also records the admitted position that the appellants did not pay the amount payable as per OTS. The letter records that OTS has been cancelled, as the request made by the appellants to pay the OTS amount from the sale of the mortgaged property through the private treaty was declined. The said letter refers to the letter dated 17th October 2016 addressed by the appellants to the first respondent, by which, a request was made to permit the payment of amount as per OTS sanctioned way back in the year 2014 after selling the mortgaged property under a private treaty, was declined. The letter dated 26th July, 2014 annexed to the petition shows that by the said letter, the first respondent informed the second appellant that the prayer for payment of OTS amount from the sale of mortgaged property by private treaty stands rejected.
7. What was challenged before the learned Single Judge was the Sale Proclamation. Even assuming that the letter dated 15th December, 2016 was not served to the appellants, the same has nothing to do with the challenge of the Sale Proclamation dated 11th November, 2016.
8. We, therefore, fail to understand how the breach of principles of natural justice is relevant in the present case, as what was sought to be communicated by the letter dated 16th December, 2016 is the rejection of the request made by the appellants way back in the year 2014. We, therefore, concur with the view taken by the learned Single Judge that an efficacious remedy by way of an appeal is available to the appellants. Therefore, writ petitions should not be entertained.
9. We may note here that though an order of recovery has been made against the appellants twenty three years back, which has attained finality, no amount has been paid by the appellants and that the first respondent is unable to recover any amount till today.
10. Hence, there is no merit in the appeal and the same is accordingly, dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE srl