IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION Nos.54627-54629/2017 (GM-RES) BETWEEN:
1. SRI. KRISHNA SHETTY C. M. S/O. MADASHETTY, AGED ABOUT 38 YEARS, RESIDING AT NO.922/1, K-113, GROUND FLOOR, 4TH CROSS, SUNNADAKERI, K.R. MOHALLA, MYSORE-570 004.
2. SRI. VENKATESH C, S/O. NAGARAJU, AGED ABOUT 36 YEARS, RESIDING AT NO.922/1, K-113, FIRST FLOOR, 4TH CROSS, SUNNADAKERI, K.R. MOHALLA, MYSORE-570 004.
3. SRI. KUMARASWAMY H S/O. HUCHANAYAKA AGED ABOUT 40 YEARS, RESIDING AT NO.922/1, K-113, 2ND FLOOR, 4TH CROSS, SUNNADAKERI, K.R. MOHALLA, MYSORE-570 004. …PETITIONERS (BY SRI.GEORGE LAZARUS R, ADV.) AND:
1. THE DISTRICT MAGISTRATE/ DEPUTY COMMISSIONER, OFFICE OF THE DEPUTY COMMISSIONER, MYSORE DISTRICT-570 005.
2. THE AUTHORIZED OFFICER, SRI. KANNIKA PARAMESHWARI CO-OPERATIVE BANK LTD., K.R. CIRCLE, MYSORE-570 001.
3. SRI. SHIVASWAMY S/O. MAHADEV, AGED ABOUT 34 YEARS, RESIDING AT NO.1159, 2ND CROSS, MILK CENTRE ROAD, VIDYARANYAPURAM, MYSORE-570 008. …RESPONDENTS (BY SRI. B.S. MAHENDRA, ADV. FOR CAVEATOR R-2; SRI. K.P. YOGANNA, HCGP FOR R-1;
NOTICE TO R-3 IS DISPENSED V/O DATED 05.12.2017) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.10.2017 AT ANNEXURE-C PASSED BY R-1 WHICH IS ISSUED FOR TAKING ACTUAL POSSESSION OF THE SCHEDULED PREMISES FROM THE PETITIONERS WHO HAVE BEEN OCCUPIED THE SAID PREMISES AS LAWFUL TENANTS AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Learned Government Advocate to accept notice for respondent No.1 and file memo of appearance in four weeks. The respondent No.2 has entered caveat. Hence, there is no need to issue notice. Notice to respondent No.3 is dispensed since, the presence of respondent No.3 for consideration of the petitions is unnecessary.
2. The petitioners are before this Court assailing the order dated 25.10.2017 as at Annexure-C to the petitions. In that light, the petitioners are seeking that the respondent No.2-Bank be directed not to dispossess the petitioners from the premises in question.
3. The respondent No.2-Bank had initiated proceedings under the SARFAESI Act against respondent No.3 due to non-repayment of the loan secured by respondent No.3. In the said process, since action was initiated against the secured asset, the petitioners herein claiming to be the tenants in the said premises are before this Court assailing the order dated 25.10.2017 impugned at Annexure-C to the petitions. The said order is passed while exercising the power under Section 14 of the SARFAESI Act.
4. The contention put forth by the petitioners is that, though the petitioners were arrayed as respondents in the said proceedings, no notice has been issued to the petitioners despite there being a specific direction to that effect by this Court. In that regard, a perusal of the order dated 04.07.2016 passed in W.P.Nos.24339-24341/2015 would disclose that, at the earlier instance, when this Court had set aside an order passed under Section 14 of the SARFAESI Act and while permitting a fresh petition to be filed by the respondent No.2-Bank, had also directed the petitioners herein be arrayed as respondents to the said proceedings and they be notified in the said proceedings, before the orders are passed therein.
5. Taking note of the said direction, a perusal of the cause title to the order impugned dated 25.10.2017 would no doubt disclose that the petitioners have also been arrayed as respondents to the said proceedings. However, the order does not disclose that the petitioners have been notified, heard and thereafter the order is passed. If that be the position, the order impugned would not be sustainable for not providing opportunity to the petitioners more particularly, when a specific direction to that effect had been issued by this Court.
6. Therefore, in order to provide an opportunity to the petitioners and enable an appropriate order to be passed, the order impugned dated 25.10.2017 is quashed. The matter is remitted to the respondent No.1 for fresh consideration. The petitioners and respondent No.2 herein shall appear before the respondent No.1 without notice being issued, on 20.12.2017 at 3.00 p.m. as the first date for appearance. Thereupon, the respondent No.1 shall provide opportunity to the petitioners and pass fresh orders in accordance with law. All contentions on merits are left open.
The petitions are accordingly disposed of.
Sd/- JUDGE ST