IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION Nos.36599-36600 OF 2017 (GM-RES) BETWEEN:
1. SRI RAMA KRISHNA SAI KARUTURI S/O. KARUTURI SURYA RAO AGED ABOUT 49 YEARS 2. SMT. ANITA KARUTURI W/O. SRI RAM KRISHNA KARUTURI AGED ABOUT 45 YEARS BOTH ARE RESIDENT OF # 9/56, 8TH MAIN 1ST CROSS UPPER PALACE ORCHARDS SADASHIVA NAGAR BANGALORE-560 080. …PETITIONERS (BY SRI ASIM MALIK, ADV. FOR SRI AIYAPPA K G, ADV.) AND:
1. ICICI HOME FINANCE LTD. MYTHREE TOWERS 4/10 HOSUR ROAD, BOMANAHALLI BANGALORE-560 068 REPRESENTED BY ITS AUTHORISED OFFICER.
2. SRI RAJESH N. AGED MAJOR # 9/56, 8TH MAIN, 1ST CROSS UPPER PALACE ORCHARDS SADASHIVA NAGAR BANGALORE-560 080. …RESPONDENTS (BY SRI MANU KULKARNI, ADV. FOR SRI SANJANTHI SAJAN POOVAYYA, ADV.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED: 31.01.2017 IN CRIMINAL MIS.283/2017 ON THE FILE OF HON’BLE 7TH ADDL. CHIEF METROPOLITAN MAGISTRATE AT BANGALORE AS PER ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri Asim Malik, learned counsel for Sri Aiyappa K.G. for petitioners. Sri Manu Kulkarni, learned counsel for Sri Sanjanthi Sajan Poovayya for respondents.
2. The writ petitions are admitted for hearing.
With the consent of the parties, the matter is heard finally.
3. In these petitions under Article 226 of the Constitution of India, the petitioners have assailed the validity of the order dated 31.01.2017 passed by the VII Additional Chief Metropolitan Magistrate, Bangalore under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ‘SARFAESI Act’ for short).
4. The facts giving raise to filing of the writ petitions briefly stated are that the petitioners in the month of May, 2008 had availed the financial assistance for housing purpose. On 30.03.2016, the petitioners are stated to have forwarded a proposal for settlement of dues. It is also averred in the writ petitions that in pursuance of the aforesaid proposal, the petitioners have deposited two monthly installments as required for settlement of dues under ‘One Time Settlement’ scheme. Thereafter, on 30.07.2016, a demand notice was issued by the respondent-Bank. On receipt of the same, on 11.08.2016, by way of a reply, the petitioners expressed their willingness to clear the dues without prejudice. It is further pleaded in the writ petitions that instead of considering the request made by the petitioners for settlement of dues under ‘One Time Settlement’ scheme, the respondent-Bank proceeded to initiate action under Section 13(4) of the SARFAESI Act and thereafter, the respondent-Bank filed an application before the jurisdictional Chief Metropolitan Magistrate under Section 14 of the SARFAESI Act seeking possession of the secured asset. Thereupon, by impugned order dated 31.01.2017, the VII Additional Chief Metropolitan Magistrate, Bangalore has held that the respondent- Bank is entitled to take possession of the secured assets and assistance of the police has also been provided.
5. Learned counsel for the petitioners would submit that the petitioners are now ready and willing to settle the dues. However, the aforesaid request of the petitioners is not being acceded to by the respondent- Bank.
6. In response, the learned counsel for the respondent-Bank would submit that the conduct of the petitioners disentitles them for the discretionary relief under Article 226 of the Constitution of India. It is further submitted that the petitioners had filed another writ petition in W.P.Nos.7439-7440/2017 before a Bench of this Court which was disposed of on 07.03.2018 with liberty to the petitioners to take recourse to the remedy under Section 17 of the SARFAESI Act.
7. I have considered the submissions made by the learned counsel for the parties and perused the records.
8. The Hon’ble Supreme Court in the case of ‘United Bank of India vs. Satyawati Tondon and Ors.’, (2010) 8 SCC 110 has while interpreting the provisions of the Act has held that, once the proceedings under the SARFAESI Act is initiated by the Bank, efficacious remedy in the form of appeal under Section 17 of the SARFAESI Act is provided to the petitioners and they should avail the same. The aforesaid decision was quoted with approval in the case of Authorized Officer, State Bank of Travancore and Another vs. Mathew K.C. reported in (2018) 3 SCC 85.
9. In view of the aforesaid enunciation of law by the Hon’ble Supreme Court and taking into count the fact that the petitioners, in respect of the same property had filed writ petitions which was disposed of with liberty to the petitioners to avail the alternate remedy of appeal under Section 17 of the SARFAESI Act, these writ petitions are also disposed of with liberty to the petitioners to take recourse to the remedy of appeal provided under Section 17 of the SARFAESI Act. Needles to state that, it is open for the petitioners to raise all contentions urged before this Court in the appeal which may be preferred by them. The petitioners are also entitled to benefit of condonation of delay on the principles contained in Section 14 of the Limitation Act, 1963 in case, the appeal is preferred by the petitioners within three weeks from the date of receipt of certified copy of this order.
With the aforesaid liberty, the writ petitions stand disposed of.
Sd/- JUDGE ST