IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.50451 OF 2019 (GM-RES) BETWEEN:
Satish Babu S/o. Late H.Hanumanthappa Aged 49 years R/at #94, 2nd CRS, Udaynagar, Chikkallasandra, Uttarahalli, Bengaluru (By Sri. Chandrashekar L., Advocate) AND:
1. Lakshmi Vilas Bank, Regional Office, No.93, TKN, Mansion, 2nd Floor, K.H.Road, Opp:KSRTC, Bengaluru-560027. Represented by its Chief Manager 2. M/s. Hi-Tech Industries Represented by its proprietor Mr.T.Gopinath, No.565-6436C, Shed No.40 & 41, Doresnaipalya, Bannerghatta Road, Bengaluru-560076.
... Petitioner 3. T.Gopinath, S/o. Mr. Thimmegowda, No.94, 2nd CRS, Udaynagar, Chikkallasandra, Uttarahalli Main Road, Bengaluru-560061.
4. Mrs. K.S.Vinutha, W/o. T.Gopinath, No.94, 2nd CRS, Udaynagar, Chikkallasandra, Uttarahalli Main Road, Bengaluru-560061.
... Respondents This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order passed by the Learned Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru passed in C.MIS.No.361/2019 dated 1st July 2019, produced at Annexure-A & etc.
This Writ Petition coming on for preliminary hearing this day, the court made the following:
ORDER The petitioner has filed this writ petition to quashing the order dated 01.07.2019 made in Crl.Mis.No.361/2019, as per Annexure A, passed by the Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru, exercising the powers under Section 14 of Securitization and Reconstruction of Financial Asset and Security Act, 2002 (‘SURFAESI Act’ for short).
2. It is the case of the petitioner that the first respondent Bank has sanctioned loan to respondent No.2 represented by respondent No.3. The petitioner is a surety to the said loan. In the year 2015, the petitioner mortgaged 0-10 guntas of land out of total extent of 0-14 guntas and remaining 0-04 guntas is dwelling house. The total loan liability of the second respondent, which respondent Nos.2 to 4 have to pay Rs.5,22,60,449/-. The respondent No.1 bank filed Crl.Mis.No.361/2019 on 18.06.2019 before the Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru seeking possession of the petition schedule property which was not mortgaged. Learned Magistrate without following the procedure proceeded to pass the impugned order dated 01.07.2019. Hence, the present writ petition is filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri Chandrashekar L, learned counsel for the petitioner reiterating the grounds urged in the writ petition contended that the impugned order passed by the Magistrate allowing the petition filed by the first respondent Bank under Section 14 of the SURFAESI Act, is erroneous, contrary to the materials placed on record. He would further contend that the learned Magistrate had not considered the fact that the first respondent has not even produced any iota of evidence regarding mortgage of the property by the petitioner. He would further contended that 0-04 guntas being dwelling house, where the petitioner is residing along with his parents has not been mortgaged. Said contention was not at all considered by the learned Magistrate. He would further contended that the impugned order passed by the learned Magistrate is liable to be quashed which is against the principles of natural justice. Therefore he sought to allow the writ petition.
5. Having heard the learned counsel for the petitioner, at the outset, the very writ petition filed by the petitioner before this Court is not maintainable as the petitioner has got alternative remedy to file petition under Section 17 before the Debt Recovery Tribunal and the learned counsel for the petitioner fairly submits that the order of Magistrate dated 01.07.2019 already implemented by the bank and taken possession. It is also not in dispute that the petitioner stood guarantee for the loan obtained by the respondent Nos.2 to 4 and mortgaged 0-10 guntas of land. Whether the mortgage includes house or not is a matter of evidence. This Court cannot record any evidence as the petitioner has alternative remedy, this Court exercising the power under Article 226 or 227 of the Constitution of India, cannot direct the bank to restore the possession back in pursuance to the order of the learned Magistrate unless and until the order is set-aside by the appropriate authority/competent authority under the provisions of the SURFAESI Act.
6. In view of the aforesaid peculiar facts and circumstances of the case, the petitioner has not made out any ground to grant relief before this Court by exercising the extraordinary Writ jurisdiction of this Court.
7. In view of the above facts and circumstances, the Hon’ble Supreme Court in the case of ICICI BANK LTD. AND ORS. VS. UMAKANTH MAHAPATRA AND ORS. made in Civil Appeal No.10243-10250/2018 and connected matters dated 05.10.2018, held that the High Courts shall not entertain the matters which arise under the Securitization and Reconstruction of Financial Asset and Security Act, 2002 (‘SURFAESI Act’) and keep granting interim orders in favour of persons who are Non- Performing Assets (NPAs) and hence writ petition was not maintainable. On that count also the writ petition is not maintainable. Accordingly, writ petition is dismissed.
KMV* SD/- JUDGE