IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NO.54413 OF 2017 (GM-RES) BETWEEN:
ST.KURIAKOSE ELIAS CHAVARA CHURCH PARISH TRUST EJIPURA, VIVEKANAGAR P.O. BANGALORE – 560 047 REPRESENTED BY ITS TRUSTEE MR.TONY THARAKAN, 52 YEARS.
..PETITIONER (BY Ms.JAYASREE NARASIMMAN, ADVOCATE FOR SRI.UDITA RAMESH, ADVOCATE) AND:
1. VIJAYA BANK SARAKKI BRANCH, SARAKKI BANGALORE – 560 078 REPRESENTED BY ITS MANAGER.
2. THE AUTHORISED OFFICER VIJAYA BANK ASSET RECOVERY MANAGEMENT BRANCH, NO.19, SHRUTHA COMPLEX PRIM ROSE ROAD BANGALORE – 560 025.
..RESPONDENTS (BY SRI.VIGNESH SHETTY, ADVOCATE FOR R1 AND R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO REFUND THE SUM OF RS.1,01,85,000/- BEING THE SALE CONSIDERATION AND THE REGISTRATION FEE PAID HEREIN ALONG WITH INTEREST AT 15% P.A. TO THE PETITIONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Ms.Jayasree Narasimman, learned Counsel for the petitioner.
Sri.Vignesh Shetty, learned Counsel for the respondents.
The petition is admitted for hearing. With the consent of learned Counsel for the parties, the matter is heard finally.
2. In this writ petition, petitioner, inter alia, seeks a direction to the respondents to refund Rs.1,01,85,000/- i.e. amount of sale consideration along with registration fee, as well as interest at the rate of 15% p.a. to the petitioner.
3. Facts giving rise to filing of this writ petition briefly stated are that on 22.10.2014, respondent No.1- Bank published e-auction notice under the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as ‘SARFAESI Act’ for short) in respect of the property in question. The petitioner obtained legal scrutiny report with regard to the property in question and deposited a sum of Rs.9,60,000/- towards earnest money deposit on 25.11.2014. Thereafter, the petitioner paid a sum of Rs.7,65,000/- on 29.11.2014 by way of cheque to respondent No.1-Bank. The petitioner further paid Rs.7,00,000/- vide cheque of even date to respondent No.1-Bank. Petitioner obtained loan from South Indian Bank and transferred a sum of Rs.71,78,000/- through RTGS to the account of respondent No.1-Bank. Thereafter sale certificate was issued by the respondents on 26.12.2014 in favour of the petitioner.
4. However, sale conducted by the respondents was subject matter of challenge before the Debts Recovery Tribunal. The Debts Recovery Tribunal by order dated 27.03.2017, set-aside the sale as well as the sale certificate on the ground that the respondents have not followed the mandatory procedure prescribed under the law. Petitioner thereupon approached respondent No.1-Bank seeking refund of the sale consideration and other amount which was paid by the petitioner to respondent No.1-Bank. However no action in the matter was taken by respondent No.1-Bank. In this factual background, this petition has been filed.
5. Learned counsel for the petitioner submitted that respondent No.1-Bank be directed to refund the amount of Rs.1,01,85,000/- being sale consideration as well as registration fee, as well as interest at such rate as this Court may deem fit. On the other hand, learned counsel for respondent No.1-Bank did not dispute the aforesaid factual position. However, it is submitted that respondent No.1-Bank has filed an appeal against the order passed by the Debts Recovery Tribunal which is coming up for hearing on 2.05.2019 and therefore, the hearing of the petition be deferred and respondent No.1- Bank be allowed to retain the amount deposited by the petitioner.
6. I have considered the submissions made by learned counsel for the parties. Admittedly, the petitioner has paid a sum of Rs.1,01,85,000/- towards sale consideration to respondent No.1-Bank and has incurred expenses towards registration fee. The sale made in favour of the petitioner has been set-aside by the Debts Recovery Tribunal by an order dated 27.3.2017. The petitioner is neither in possession of the property nor the amount, which is said to have been illegally retained by respondent No.1-Bank. It is also pertinent to note at this stage that in the proceeding filed by respondent No.1-Bank before the Debtrs Recovery Appellate Tribunal, no interim order has been granted in favour of the respondent No.1-Bank permitting it to retain the amount which has been paid by the petitioner. Thus, the retention of the amount which is due and payable to the petitioner by respondent No.1-Bank is per se without any authority of law and amounts to illegal retention, which is not permissible in law. Respondent No.1-Bank is a public sector Bank and it has to be fair in its dealing with the public. In the instant case, respondent No.1-Bank has withheld the amount of the petitioner without any authority of law. Therefore, in the fact situation of the case, it is directed that the respondent No.1-Bank shall pay a sum of Rs.1,01,85,000/- towards sale consideration to the petitioner, as well as the amount incurred by it towards expenses for registration fee along with interest at the rate of 6% p.a. from the date of the order passed by the Debts Recovery Tribunal within a period of one month from today. Incase the payment is not made within a period of one month from today, the amount in deposit shall carry interest at 10% p.a. till payment is made.
With the aforesaid directions, the petition is disposed of.
sd/- JUDGE ln.