IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.35114 OF 2014 (GM-RES) BETWEEN:
Sri. Vasanthkumar S/o Sri. Eshwar Rao Aged 35 years Represented by his GPA Holder Sri. Eshwar Rao Aged about 61 years S/o Sri. Vittal Rao Residing at No.465 Opp: Vishal English School Anchepalya Bengaluru – 560 073.
(By Sri. Mithun G. A, Advocate) AND:
1. The Union Bank of India Rep by its Authorised Officer Asset Recovery Branch No.583/584, 2nd Floor Pooja Complex, Avenue Road Bengaluru – 560 002.
2. Smt. Parvathamma Aged about 54 years W/o Sri. Bore Gowda R/a No.12/28, 8th Cross … Petitioner Bovipalya, Pipeline Road Mahalakshmipuram Now Vaddra Palya 1st A Block, Rajajinagar Bengaluru – 560 086.
… Respondents (By Smt. Shwetha Ravishankar G. Y., Adv., for R1; and Sri. N. Suresh, Adv., for R2) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondent to perform its legal duty by initiating the provisions of Section 14 of the SARFAESI Act to take physical and vacant possession and control of the Schedule property bearing No.12/28, 8th Cross, Old No.12, 1st A Block, Rajajinagar, Vaddarapalya, BBMP Ward No.8, Bengaluru by taking police assistance if necessary to defend the guarantor resistance and handover the physical and vacant possession to the petitioner, and etc.
This Petition coming on for Preliminary Hearing in ‘B’ Group, this day, the Court made the following:-
ORDER Sri. Mithun G. A., learned counsel for the petitioner.
Smt. Shwetha Ravishankar G. Y., learned counsel for respondent No.1.
Sri. N. Suresha, learned counsel for respondent No.2.
The petition is admitted for hearing. With the consent of learned counsel for the parties, the same is heard finally.
2. In this petition, petitioner inter alia seeks for a writ of mandamus directing respondent No.1 to perform its legal duty by initiating proceedings under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for short) and to deliver the vacant possession of the premises to the petitioner, who is an auction purchaser.
3. The facts giving rise to filing of the writ petition briefly stated are that the auction was held on 20.12.2010, in respect of the property in question. The petitioner had participated in the aforesaid auction and had paid the entire sale consideration of `20 Lakhs on 18.02.2011. It is the case of the petitioner that though Mahazar was prepared for handing over of the possession of the premises in question on 18.02.2011, yet the possession of the premises in question was not handed over to the petitioner. In view of the aforesaid factual background, the petitioner has approached this Court seeking relief as stated supra.
4. Learned counsel for the petitioner submitted that petitioner is an auction purchaser and the respondent-Bank is under obligation of handing over the possession of the premises in question to the petitioner. It is further submitted that respondent No.2, namely, the Borrower, in the statement of objection has stated that the officer of the respondent-Bank have handed over the possession of the premises in question and the Borrower is in the possession of the premises in question and therefore, the Bank would be directed to initiate the proceeding under Section 14 of the Act and to take possession of the premises in question from the Borrower and to handover the same to the petitioner.
5. By way of reply, learned counsel for respondent No.1-Bank has invited the attention of this Court to the documents R3 and R4 annexed with the statement of objections, namely, Mahazar report and the memo of handing over of the possession of the property. It is further submitted that the possession of the property in question has already been handed over to the petitioner on 18.02.2011 at 11.35 a.m. and the aforesaid memo has been signed by the General Power of Attorney of the petitioner. Hence, no relief in this petition can be granted to the petitioner and in case, petitioner has any grievance, he is at liberty to take recourse to such remedy as may be available to him under law.
6. I have considered the submissions made by learned counsel for the parties and perused the records. The relief extract of handing over/taking over of the property reads as under:
“I, Mr. Vasant Kumar represented by GPA Holder Shri. Eshwar Rao, the Auction Purchaser, has taken possession of the below mentioned schedule property on 18.02.2011 at 11.35 A.M.”
7. Admittedly, when a query was put to learned counsel for the petitioner, learned counsel for the petitioner fairly submitted that the aforesaid memo has been signed by the General Power of Attorney holder of the petitioner and that the possession was handed over to him only on a paper.
8. From perusal of the aforesaid memo, it is evident that the possession of the property has been handed over to the petitioner on 18.02.2011 at 11.35 a.m. This Court under Article 226 of the Constitution of India cannot record a finding whether the possession was given to the petitioner on paper or actually he was in possession and subsequently, he was dispossessed by the borrower. The contention of the petitioner that subsequently he has been dispossessed from the property in question cannot be adjudicated in this writ petition as this Court in a summary proceeding under Article 226 of the Constitution of India is unable to adjudicate the disputed question of fact.
9. Therefore, in view of the aforesaid submission and in the facts of the case, writ petition is disposed of with a liberty to the petitioner to take recourse to such remedy as may be available to him under law.
Accordingly, petition is disposed of.
Sd/- JUDGE Mds/-