IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION No.48616 OF 2019 (GM-RES) BETWEEN:
VENKATA RAMANAIAH P., S/O. LATE SUBBAIAH, AGED 43 YEARS, NO.52, 3RD MAIN, 6TH CROSS, K R PURAM, NEAR GOVT COLLEGE, BENGALURU-36.
... PETITIONER (BY SRI. RADHAKRISHNA A., ADVOCATE) AND:
DEWAN HOUSING FINANCE LTD (DHFL) REP BY ITS AUTHORIZED OFFICER HAVING ITS OFFICE AT NO.1347/36, 2ND FLOOR, REGIGUDDA CIRCLE SOUTH END MAIN ROAD, JAYANAGAR 9TH BLOCK, BENGALURU-69.
... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO RESTRAIN THE RESPONDENT FROM SELLING THE PETITIONER’S MORTAGAGED PROPERTY (SECURED ASSETS) TAKEN UNDER ANNEXURE-L DATED 05.09.2019 BY THE RESPONDENT WHO HAS DEFAULTED IN PAYING THE BALANCE AMOUNT OF RS.10,19,000/- DUE TO THE PETITIONER AND THE INSURANCE AMOUNT AND ALSO NOT GIVING ANY REASONS UNDER SECTION 13(3A) OF THE SARFAESI ACT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner in the above writ petition sought for the following prayers:-
a. “Issue a writ, order or direction, restraining the respondent from selling the petitioner’s mortgaged property (secured assets) taken under Annexure ’L’ dated 05.09.2019 by the respondent, who has defaulted in payment the balance amount of Rs.10,19,000/- due to the petitioner and the insurance amount and also not giving any reasons under section 13(3A) of the SARFAESI Act.
b. Issue any other appropriate order or direction or and writ, as this Honorable court deems fit and necessary under the facts and circumstances of the case in the interest of the justice.”
2. It is the case of the petitioner that on 14.03.2017, respondent agreed to sanction a sum of Rs.64,29,519/- to the petitioner as composite loan, one for purchase of a site and another loan for constructing a house on the site and collected pre EMI of Rs.10,192/- even before sanctioning the loan. On 20.03.2017, respondent paid a sum of Rs.29,40,000/- to the petitioner only for purchasing the site. Accordingly, the petitioner purchased the site and the title deed came to be deposited with the respondent bank on 30.03.2017. Thereafter, on 20.11.2017, the respondent bank released first payment of Rs.9,18,000/- towards the construction loan. Respondent bank released second payment of Rs.6,50,000/- towards construction loan on 12.03.2018, that too, after four months of repeated request to disburse the construction loan as early as possible. The respondent released Rs.4,73,000/- towards loan for the construction on 12.05.2018 as part of the third payment and inspite of legal notice issued, the respondent did not pay the construction loan and there is a balance of Rs.10,19,000 + interest on the insurance of Rs.3,70,869/-. Due to the delay in time bound payment, there is loss of Rs.7,00,000/- to the petitioner and construction was delayed and came to a standstill and the building remained incomplete and isolated and lying as a waste and same has been misused by the passersby. Though, the petitioner repaid the loan about 204 months and monthly EMI of Rs.44,276/-, after paying the entire sanctioned amount, inspite of receipt of said amount, respondent issued notice on 05.09.2019 under the provision of section 13(4) of SARFAESI Act . Therefore, the petitioner is before this Court.
3. Having heard the learned counsel for the petitioner, in view of the provision under Section 17(1) of SARFAESI Act, petitioner has got alternate remedy before the Debt Recovery Tribunal against issuance of possession notice under section 13(4) of the Act. Same is not disputed by learned counsel for the petitioner. Admittedly, there are disputed facts and this Court cannot decide and it is for the Appellate Court under the provision of Section 17 (1) of SARFAESI Act to decide the same on merits. Therefore, petitioner has not made out any ground to interfere with the impugned notice.
4. In view of the above, the writ petition is dismissed as not maintainable with liberty to the petitioner to avail alternate remedy of appeal as contemplated and in accordance with law.
Sd/-
JUDGE *mn/-