IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NOS.57987-990 OF 2018 (GM-CPC) BETWEEN:
1. M/S. VINTAGE FOODS AND INDUSTRIES LTD. NO.255/15, NEW NO.29, 5TH MAIN, 13TH CROSS, VAYALIKAVAL, MALLESHWARAM, BANGALORE – 560 003. REP.BY ITS DIRECTOR, MR.N.K. MOHTA.
2. SRI.N.K. MOHTA, S/O. RAM RATAN MOHTA, AGED ABOUT 64 YEARS.
3. MRS. SARITA MOHTA, W/O. N.K. MOHTA AGED ABOUT 59 YEARS.
NO.2 & 3 ARE RESIDING AT D-202, MANTRI GREENS APARTMENT NO.1, SAMPIGE ROAD, MALLESHWARAM, BANGALORE – 560 003.
4. M/S. INSOTEX (INDIA) LTD., NO.255/15, NEW NO.29, 5TH MAIN, 13TH CROSS, VAYALIKAVAL, MALLESHWARAM, BANGALORE – 560 003. REP.BY ITS DIRECTOR, MR.N.K. MOHTA. … PETITIONERS (BY SRI. A.V. AMARNATHAN, ADV.) AND:
1. KARNATAKA STATE INDUSTRIAL INVESTMENT & DEVELOPMENT CORPORATION LTD.(KSIIDC), NO.49, KHANIJA BHAVANA, 4TH FLOOR, EAST WING, DEVARAJ URS.ROAD, BANGALORE – 560 001.
REPRESENTED BY ITS AUTHORISED OFFICER.
2. I.D.B.I. BANK LTD.
STRESSED ASSETS STABILIZATION FUNDS (SASF) 9TH FLOOR, IDBI TOWER WTC COMPLEX, CUFFE PARADE MUMBAI 400 005.
REP. BY ITS AUTHORIZED SIGNATORY.
ALSO HAVING THEIR LOCAL HEAD OFFICE AT IDBI HOUSE, NO.58, GROUND FLOOR, MISSION ROAD, BANGALORE. 560 027.
... RESPONDENTS (BY SRI.T.P. MUTHANNA, ADV. FOR R1;
SMT. USHA M.V. FOR SRI. V.F. KUMBAR, ADV. FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS NOT TO REMOVE ANY MACHINERIES INSTALLED AT INDUSTRIAL PLOT NO.21/B, KUMBALAGODU INDUSTRIAL AREA, II PHASE, KENGERI HOBLI, BANGALORE SOUTH TALUK, TILL THE DISPOSAL OF MISC.PETITION NO.47/08 WHICH IS PENDING BEFORE CCH-38, NOW POSTED TO 8.1.2019, ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri.A.V.Amarnathan, learned Counsel for the petitioners.
Sri.T.P.Muthanna, learned Counsel for respondent No.1.
Smt. Usha.M.V., learned Counsel for Sri.V.F.Kumbar, learned Counsel for respondent No.2.
The petitions are admitted for hearing. With the consent of parties, the same are heard finally.
2. In these petitions under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 30.11.2018 passed by the trial Court on an application filed by the petitioners under Order I Rule 10(2) of the Civil Procedure Code, 1908, (hereinafter referred to as “the Code” for short) by which, the prayer sought for impleadment of respondent No.5 has been rejected.
3. The facts giving rise to filing of these writ petitions are, the petitioners had obtained a loan from respondent No.1-Bank by creating mortgage of their properties. However, it appears, that the petitioners have failed to repay the amount of loan. Thereupon, the respondent No.1 initiated a proceeding under Section 31 of the State Financial Corporations Act, 1951 (hereinafter referred to as ‘the Act’ for short) before the trial Court, by which, they sought permission of the trial Court to sell the property which was mortgaged by the petitioners as security for loan.
4. During the pendency of the aforesaid proceeding, the respondent No.2 in exercise of the powers under Section 34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, sold the property belonging to the petitioners, which according to the petitioners was subject matter of the suit. Thereupon, the petitioners filed an application seeking impleadment of respondent No.2 herein. The aforesaid application has been rejected by the trial Court.
5. Learned Counsel for the petitioners submitted that this Court has jurisdiction under Article 226 of the Constitution of India to entertain a petition, notwithstanding availability of an alternative remedy. In support of the aforesaid submissions, reference has been made to the following decisions in the cases of ‘Commissioner of Income Tax & others Vs. Chhabil Dass Agarwal’ reported in (2014) 1 Supreme Court Cases, 603; ‘Harbanslal Sahnia & another Vs. India Oil Corporation Ltd., & others’ reported in (2003) 2 Supreme Court Cases, 107; ‘State of H.P. & others Vs. Gujarat Ambuja Cement Ltd., and another’ reported in (2005) 6 Supreme Court Cases, 499; ‘Sanjana M. Wig (Ms) Vs. Hindustan Petroleum Corpn. Ltd.,’ reported in (2005)8 Supreme Court Cases, 242; ‘T.H.Saganappa Vs. T.R.Srinivasamurthy & others’ reported in AIR 1981 Kar. 114.
It is further submitted that respondent No.2 had no authority to sell the property, which was the subject matter of the suit and only a sum of Rs.40 lakhs was due and payable by the petitioners in view of the settlement arrived under the One Time Settlement scheme. Therefore, the trial Court has erred in rejecting the application filed under Order I Rule 10(2) of the Code.
6. On the other hand, learned counsel for respondent No.2 submitted that respondent No.2 is neither a necessary nor a proper party in a proceeding instituted by respondent No.2 under Section 31(1) of the Act.
7. I have considered the submissions made by learned counsel for the parties and perused the records.
8. Admittedly, the present proceeding out of which these writ petitions arise are instituted by respondent No.1 under Section 31(1) of the Act. The petitioners are admittedly respondents in the aforesaid proceeding. The petitioners by no stretch of imagination can be permitted to implead respondent No.2-Bank and to widen the scope of the proceeding instituted by respondent No.1 under Section 31 of the Act.
9. The grievance of the petitioners herein cannot be adjudicated in a proceeding under Section 31(1) of the Act, which has been instituted by respondent No.1. The respondent No.2 bank is neither a necessary nor a proper party for determination of the lis pending between the petitioners and respondent No.1, in a proceeding under Section 31(1) of the Act. Therefore, the order passed by the trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of record warranting interference of this Court under Article 227 of the Constitution of India.
10. So far as the decisions relied by the learned counsel for the petitioners are concerned, suffice it to say that they deal with the power of this Court to interfere in matters in exercise of powers under Article 226 of the Constitution of India, where an alternative remedy is available.
11. In the instant petitions, the aforesaid question need not be gone into, as the petitioners have challenged the order passed in application filed under Order I Rule 10(2) of the Code by the trial Court in a proceeding under Article 227 of the Constitution of India. Therefore, the aforesaid decisions have no application to the fact situation of the case. Needless to state, in case, the petitioners are aggrieved by any of the action taken by respondent No.2, they are at liberty to take recourse to such legal remedy, as may be available to them under the law.
With the aforesaid liberty, petitions are disposed of.
Sd/- JUDGE bkp