IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A.S. BOPANNA WRIT PETITION Nos.47166-47167/2017 (GM-RES) BETWEEN:
1. SRI MATHEW JOSEPH CHARLES S/O.CHARLES NO.16, GROUND FLOOR 2ND BLOCK, 2ND CROSS AKSHAYANAGAR RAMAMURTHYNAGAR BENGALURU-560 016.
2. SRI.C. RAJ KUMAR AGED ABOUT 42 YEARS S/O LATE R. CHANDRAN NO.16, GROUND FLOOR 2ND BLOCK, 2ND CROSS AKSHYANAGAR RAMAMURTHYNAGAR BENGALURU-560 016. ... PETITIONERS (BY SRI. N.S.SHESHADRI N.S, ADV.) AND:
1. INDIA BULLS HOUSING FINANCE LTD NO.81, PREKSHA BUILDING B/W 10TH AND 11TH CROSS TEMPLE STREET MALLESWARAM BENGALURU-560 003.
REP.BY ITS MANAGER.
2. THE AUTHORISED OFFICER INDIA BULLS HOUSING FINANCE LTD., NO.81, PREKASH BUILDING B/W 10TH AND 11TH CROSS TEMPLE STREET MALLESWARAM BENGALURU-560 003.
3. M/RS. BROSBEL ENGINEERING PVT. LTD. NO.184, 1ST CROSS, MUNINANJAPPA LAYOUT BEHIND BP BUNK RAMAMURTHYNAGAR BENGALURU-560 016.
REP. BY ITS DIRECTOR.
4. SRI. MERVIN RICH RESIDING AT NO.09, 16TH CROSS 2ND BLOCK, AKSHYANAGAR BENGALURU-560 016. ... RESPONDENTS (BY SRI. FRANCIS XAVIER, ADV. FOR C/R1) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD:7.10.2017, PASSED BY THE X ADDL. CHIEF METROPILITAN MAGISTRATE, BENGALURU IN C.MIS NO.50008/2016 AS PER ANNEXURE-S AND DIRECT THE R-1 & 2 BANK AUTHORITIES NOT TO DISPOSSESS THE PETITIONERS WITHOUT DUE PROCESS OF LAW.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners are before this Court assailing the order dated 07.10.2017 passed in C.Mis.No.50008/2016 and in that light, the petitioners are seeking that the respondents No.1 and 2 be directed not to dispossess the petitioners from the petition schedule property.
2. The petitioners claim to be the tenants in respect of the secured asset which is indicated as the schedule property. In that light, the petitioners contend that their right as available to them to continue in possession of the secured asset cannot be taken away by the respondents No.1 and 2 by exercising the provisions as contained in the SARFAESI Act.
3. Though contentions have been urged by the learned counsel for the petitioners to contend that the learned Magistrate while passing the order dated 07.10.2017 has not appropriately considered the right as claimed by the petitioners as tenants in respect of the property, as rightly pointed out by the learned counsel for the Caveator, all contentions in that regard can be urged in an appeal as contemplated under Section 17(4A) of the SARFAESI Act to be filed by the petitioners before the Debts Recovery Tribunal (‘DRT’ for short), if they are aggrieved. In that regard, having taken note of the provision as contained in the Act and also the order dated 31.07.2017 passed by this Court in W.P.No.29622/2017, the petitioners in any event would have the liberty of filing an appeal as contemplated therein.
4. Therefore, until such appeal filed by the petitioner is taken up for consideration by the DRT and disposed of in accordance with law, certainly, the petitioners would have to be granted some protection by this Court.
5. Accordingly, the instant petitions are disposed of reserving liberty to the petitioners to file an appeal as provided under Section 17(4A) of the SARFAESI Act. However, until the appeal is filed and taken up for consideration by the DRT, the respondents shall not disturb the physical possession of the petitioners. The protection as granted is however subject to the condition that the petitioners file such appeal before the DRT within a period of four weeks from the date of receipt of a copy of this order.
Sd/- JUDGE ST