IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION NO.35228/2013 (GM-RES) BETWEEN:
SRI KARAN RAMSISARIA S/O.CHANDRAPRAKASH RAMSISARIA AGED ABOUT 23 YEARS RESIDING AT NO.23 GOLLAHALLI VILLAGE JIGANI HOBLI BANNERGHATTA BANGALORE-560 083. …PETITIONER (BY SRI PARAS JAIN, ADV.) AND:
UNION BANK OF INDIA ASSET RECOVERY BRANCH 2ND FLOOR, NO.583/584 POOJA COMPLEX AVENUE ROAD BANGALORE-560 002 REPRESENTED BY ITS MANAGER. …RESPONDENT (BY SRI P.L.VIJAY KUMAR, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT BANK AND ITS OFFICIALS: A] TO IDENTIFY AND LOCATE LAND BEARING SY.NO.46, KHATHA NO.72 AT DODDAMMADEVI TEMPLE STREET, NEAR BANNERGHATTA ROAD, HULIMAVU VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, ADMEASURING 1 ACRE 5 GUNTAS WITH CERTAINITY, WITH THE HELP OF REVENUE SURVEYOR ATTACHED TO THE SURVEY DEPARTMENT OF GOVERNMENT OF KARNATAKA AND TO DEMARCATE THE BOUNDARIES OF SAID LAND WITH ITS PHYSICAL CHARACTERISTIC IN EACH DIRECTION AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner is before this Court seeking that the respondent be directed to identify and locate the land bearing Sy.No.46, Khatha No.72 at Doddammadevi Temple Street, near Bannerghatta Road, Hulimavu Village, Begur Hobli, Bangalore South Taluk measuring 1 Acre 5 Guntas on securing the survey to be done in that regard. The petitioner in that light is also seeking that the respondent be directed to take possession and deliver peaceful vacant possession of the property and the demand for the balance 75% of the bid amount be made only after the possession of the property is taken by them from the defaulter. The consequential necessary endorsements to be obtained from the Bangalore Development Authority is also sought in this petition.
2. The respondent-Bank having taken the property bearing Sy.No.46 to which detailed reference is made above had advanced loan to the borrower. The borrower having defaulted, the respondent-Bank has taken action in respect of the said property which is the secured asset. The petitioner having participated in the tender-cum-auction sale dated 15.03.2013 is the successful auction purchaser. Insofar as the initial amount to be deposited immediately after the auction process, there appears to be no dispute. The petitioner however was required to deposit balance amount of 75% after which the transaction was to be completed.
3. When this was the position, the respondent- Bank has issued the communication dated 25.07.2013 informing the petitioner that the balance amount not being remitted, the respondent-Bank would take action to re-auction the property by canceling the earlier sale held on 25.03.2013 and the amount already deposited by the petitioner would be forfeited. The petitioner had replied the same on 30.07.2013 and since, no further action has been taken by the respondent-Bank to ensure the identity, the petitioner is before this Court in this petition.
4. The respondent though served and represented has not filed any objection to the petition. Be that as it may, the very communication dated 25.07.2013 will leave no doubt with regard to the fact that the petitioner was the successful bidder in the auction conducted by the respondent and the petitioner had quoted the amount of Rs.4,53,51,000/- which was above the reserved price which had been indicated in the notification. The said communication also indicates that the petitioner has remitted the sum of Rs.1,13,37,750/-.
5. In that view of the matter, keeping in view the transaction to the extent being not in dispute, the issue that arises for consideration is only with regard to the identity of the property and the manner in which the possession is to be handed over to the petitioner. To that extent, the grievance as being put forth by the petitioner is in view of the communication dated 25.03.2013 that is addressed by M/s. La Royale Homes, who have claimed and raised certain dispute with regard to the identity of the property which is indicated in the auction-cum-sale notice dated 15.03.2013. It is in that light, the petitioner has addressed the reply dated 30.07.2013 to the communication addressed by the respondent-Bank on 25.07.2013 referring to these aspects of the matter and in that light, contending that in view of the provision as contained in the SARFAESI Act, unless there is identification, demarcation and possession of the property, the petitioner would not be in a position to complete his part of the transaction by depositing the balance amount of 75% unless the respondent-Bank takes steps in that regard. Since, no action whatsoever was taken by the respondent-Bank, the petitioner has approached this Court.
6. A perusal of the communication dated 25.03.2013 addressed to the respondent-Bank would indicate that M/s. La Royale Homes has raised the issue with regard to the identity of the property which is sold by the respondent-Bank as the secured asset as belonging to them. In that regard, the said objector has also referred to the land which is in their possession which is now sought to be treated as the secured asset and also with regard to the land which is available and being claimed by the respondent as the secured asset.
7. If this aspect of the matter is kept in view, the communication dated 25.07.2013 addressed by the respondent-Bank to the petitioner indicating that the transaction would be cancelled and the amount would be forfeited at that stage was not justified since, the respondent-Bank having brought the property to auction was also required to ensure that the petitioner was satisfied with regard to the identification of the property in the circumstance of an objector subsequently raising objection in that regard. Even if the respondent is satisfied that the objection as raised by the objector was not justified, they were required to ensure and assure the petitioner that the land as brought to auction by them through the auction notice was available and the petitioner is required to complete the transaction. The aspect relating to possession of the said property was also to be taken note in that circumstance and an appropriate decision in that regard was to be taken by the respondent.
8. In that background, when the petitioner in reply to the communication dated 25.07.2013 has made a reply dated 30.07.2013 (Annexure-G) referring to these aspects of the matter, the respondent-Bank was required to take note of the same and arrive at a conclusion with regard to the identification of the property or if on the other hand, the respondent-Bank was satisfied that the property which is sold by them as the secured asset is available intact to be transferred to the petitioner, the petitioner was also required to be informed about this aspect of the matter and assure the petitioner in that regard and thereafter, proceed further in accordance with law.
9. In that circumstance, not having done so, the apprehension of the petitioner being to that extent justified, the respondent-Bank is required to be directed to take note of the reply dated 30.07.2013 in response to the letter dated 25.07.2013 and as per the averments made therein, the petitioner also be intimated for a joint inspection of the property and assure the petitioner in that regard.
10. Needless to mention, if in the background of the objection raised by the objector and also there being certain issues with regard to the identity, if any survey in that regard is required to be made to demarcate and identify the property in view of the contentions as raised by the objector in the communication dated 25.03.2013, the said process is also required to be undertaken by the respondent-Bank.
11. In that view of the matter, though a conclusion with regard to the identity of the property cannot be adverted to in a writ petition of the present nature, the respondent-Bank is directed not to enforce the communication dated 25.07.2013. On the other hand, the respondent-Bank shall take note of the reply dated 30.07.2013 and also keep in view the observations as made above and take a decision with regard to the identity and the possession relating to the property in reply to the communication dated 30.07.2013 and thereafter, take appropriate decisions in accordance with law.
12. To enable such consideration to be made within a time frame, the petitioner shall now submit copies of all the documents including the reply dated 30.07.2013 to the respondent-Bank along with a copy of this order. The respondent-Bank shall thereupon take a decision in the manner as indicated above and communicate the same to the petitioner as expeditiously as possible but, not later than six weeks from the date on which a copy is furnished.
The petition is accordingly disposed of.
Sd/- JUDGE ST