IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.50352/2019(GM-RES) BETWEEN:
SRI JOHN NESA KUMAR, S/O A. IRUTHAYAM AGED 44 YEARS, No.36, NASCO GULMOHAR EAST, HAINS ROAD, FRAZER TOWN, BANGALORE-56005.
(BY SMT. SANDHYA U. PRABHU, ADVOCATE) AND:
CANARA BANK, REPRESENTED BY ITS AUTHORIZED OFFICER, FRANER TOWN BRANCH, 86/3, COLES ROAD, BANGALORE-560005.
... PETITIONER ... RESPONDENT (BY SRI SHIVASHANKAR. A., ADVOCATE FOR C/R) …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 17.08.2019 PASSED BY HON’BLE XI ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE IN C.MISC.No.50241/2019 VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner in the above writ petition has sought for a writ of certiorari to quash the Order dated 17.08.2019 passed by the XI Additional Chief Metropolitan Magistrate, Bengaluru, in C.Misc. No.50241/2019, vide Annexure-E, permitting the respondent herein-Bank to take physical possession of the schedule property, for non payment of due amount of `1,27,01,660/- (Rupees One Crore Twenty Seven Lakhs One thousand Six hundred and Sixty Only).
2. Smt.Sandhya U Prabhu, learned counsel for the petitioner submits that, against the impugned Order, the petitioner has got an alternative remedy of appeal under the provisions of Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the petitioner has not yet filed the appeal.
3. Since the learned counsel for the caveator respondent did not appear before the Court in the pre- lunch session, the matter was passed over, in order to give an opportunity, and was also intimated to appear before Court through learned counsel for the petitioner. Inspite of the same, learned counsel for the caveator- respondent did not appear before the Court, when the matter was called out for the second time, in the post lunch session.
4. Learned counsel for the petitioner submits that copy of the writ petition has been served on the learned counsel for the caveator-respondent on 05.11.2019. The submission is placed on record.
5. The learned Magistrate, exercising powers under Section 14 of the SARFAESI Act, permitted the respondent-Bank to take physical possession of the property with police help. It is contended that the petitioner has stated in paragraph 6 of the memorandum of writ petition that he has already paid `1,06,00,000/- (Rupees One Crore Six Lakhs Only), to the respondent-Bank as on the date of filing of the writ petition, and the same is not disputed by the learned counsel for the caveator-respondent, inspite of providing an opportunity.
6. In the interest of justice, this Court is of the opinion that reasonable opportunity should be given to the petitioner to avail the alternative remedy of appeal. Till then, the impugned Order should not be given effect to.
7. In view of the aforesaid reasons, writ petition is disposed off as not maintainable, with liberty to the petitioner to avail the alternative remedy appeal in accordance with law, within a period of one week from the date of receipt of certified copy of this Order and the respondent-Bank shall not give effect to the impugned Order for a period of fifteen days from the date of receipt of certified copy of this Order.
Ordered accordingly.
Sd/- JUDGE kcm