IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 03RD DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 96 OF 2016 (GM-RES) Between:
Ullas Kumar S.V.
S/o. S. M. Vijay Kumar Aged 19 years R/at No.25/5, 14th ‘A’ Cross Agrahara Dasarahalli Magadi Main Road Bangalore – 560 079. ... Petitioner (By Sri. R.C.Channakeshava, Advocate) And 1. Bangalore City Co-operative Bank Pampamahakavi Road Chamarajpet Bangalore – 560018 Represented by its Authorized Officer.
2. S.M. Vijay Kumar S/o. Late S.N. Maligacharya Aged 47 years.
3. Kalpana W/o. S.M. Vijay Kumar Aged 40 years.
4. Jalajakshi W/o. S.M.Vijay Kumar Aged 44 years.
5. Kalavani D/o S.M. Vijay Kumar Aged 26 years.
6. Lavanya D/o. S.M. Vijay Kumar Aged 26 years.
7. Vandana D/o. S.M. Vijay Kumar Aged 20 years.
8. Deepak Kumar S/o. S.M.Vijay Kumar Aged 17 years.
Respondent Nos.2 to 8 Are r/at No.25/5, 14th ‘A’ Cross Agrahara Dasrahalli Magadi Main Road Bangalore – 560 079. ... Respondents (By Smt. H.R.Umadevi, Advocate for respondent No.1) This writ petition is filed under article 226 of the Constitution of India with a prayer to quash the sale notice dated 23.11.2015 vide Annexure-B; grant an interim order to stay the sale notice dated 23.11.2015 fixing the auction date 06.01.2016 which is annexure-B and stay further proceedings under securitization and etc.
This writ petition coming on for Preliminary Hearing in ‘B’ group this day, the court made the following:-
O R D E R This writ petition is filed challenging the demand notice issued by the respondent No.1-Bank under Section 13(2) of SARFAESI Act, 2002. The petitioner contends that the mortgage property is a joint family property and a suit in O.S.No.8655/2015 on the file of the City Civil Judge, Bangalore is pending consideration as regards the plaintiff’s claim that the subject property is a joint family property and undivided share. As such, the impugned notice is arbitrary. This Court granted an interim order on 05.01.2016, which reads thus:
“Issue notice to respondents.
In the meanwhile, the first respondent is directed not to finalise the auction proceedings to be held on 06.01.2016 and no third party interest shall be created without leave of this Court subject to the petitioner by himself or through respondents No.2 to 8 deposits a sum of Rs.10,00,000/- with the first respondent within four weeks from this date”.
2. The learned counsel for the petitioner does not dispute that he has not been able to comply the terms of the impugned order.
3. The learned counsel for respondent No.1-Bank submits that the petitioner did not comply with the aforesaid impugned order and respondent No.1-Bank has proceeded further and issued notice under Section 13(4) of SARFAESI Act. The respondent No.2, who is the father of the petitioner, has impugned this notice under Section 13(4) of SARFAESI Act before the DRT in proceedings in S.A.No.448/2018. The learned counsel for the respondent No.1-Bank, on the strength of these submissions, contends that the petition is rendered infructuous and will not survive for consideration.
4. The present writ petition is filed impugning only the demand notice under Section 13(4) of SARFAESI Act. The Respondent No.1-Bank was directed to hold its order and not proceed further subject to the petitioner depositing a sum of Rs.10,00,000/-. Undisputedly, the petitioner has not been able to deposit this amount, and the respondent No.1-Bank has proceeded further. If the petitioner is aggrieved, the petitioner will have to challenge any further action taken by the respondent No.1-Bank under the provisions of the SARFAESI Act.
5. Therefore, the writ petition is disposed of reserving liberty to the petitioner, subject to all permissible exceptions in law, to file necessary proceedings under the SARFAESI Act.
SD/- JUDGE KA/-