Loading judgment…
No AI summary yet for this case.
WP NO.105598/2018 : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 4TH DAY OF MARCH, 2022 BEFORE THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ WRIT PETITION Nos.105598-599/2018 (GM-RES)
BETWEEN:
PARASHURAM S/O KASHINATHASA PATIL AGED ABOUT: 53 YEARS, OCC: BUSINESS, R/O: DOOR NO.3, SHIVA SAI TOWERS, KUSUGAL ROAD, BELAVANKI COLONY, HUBBALLI, DIST: DHARWAD. ...PETITIONER
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
THE DEPUTY GENERAL MANAGER STATE BANK OF INDIA, STRESSED ASSETS MANAGEMENT BRANCH, #61, 4TH FLOOR, RESIDENCY PLAZA, RESIDENCY ROAD, BENGLAURU-560025.
2 . THE AUTHORIZED OFFICER/ CHIEF MANAGER (CLO-3) STATE BANK OF INDIA, STRESSED ASSETS MANAGEMENT BRANCH, #61, 4TH FLOOR, RESIDENCY PLAZA, RESIDENCY ROAD, BENGLAURU-560025.
WP NO.105598/2018 : 2 : 3. THE MANAGER STATE BANK OF INDIA, KESHWAPUR, HUBBALLI, DIST: DHARWAD.
THE BRANCH MANAGER BANK OF MAHARASHTRA, KOPPAL BRANCH, KOPPAL.
THE ASSISTANT DIRECTOR OF CITY SURVEY OFFICE OF THE ADLR CITY SURVEY, HUBBALLI-DHARWAD, HUBBALLI OFFICE, HUBBALLI, DIST: DHARWAD.
MOHAMMADAABDULRAZAK S/O MOHAMMADAANSWARSAB HADI, AGE: 50 YEARS, OCC: BUSINESS, R/O: PALTAN STREET, KOPPAL-583231. …RESPONDENTS
(BY SRI.SOURABH SONDUR FOR SRI. K. L. PATIL, ADVOCATE FOR R1 TO R3; R4 – SERVED; SRI. SHIVAPRABHU HIREMATH, ADVOCATE FOR R5; R6 – SERVED) ---
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OR ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI TO QUASH THE IMPUGNED REPLY BEARING NO.SBI/SAMB/CLO-3/997 DATED 13.12.2017 ISSUED BY THE RESPONDENT NO.2 AS PER ANNEXURE-D AND ETC.
THESE PETITIONS COMING ON FOR HEARING INTERLOCUTORY APPLICATION THIS DAY, THE COURT MADE THE FOLLOWING:
WP NO.105598/2018 : 3 : ORDER
The petitioner is before this Court seeking for the following reliefs: a. Issue writ or order or direction in the nature of writ of certiorari to quash the impugned reply bearing No.SBI/SAMB/CLO-3/997 dated 13.12.2017 issued by the respondent No.2 as per Annexure-D. b. Issue writ or direction in thenature of writ or certiorari quash the impugned endorsement bearing No.III/CTS/MUT/07/18-19 dated 09.07.2018 issued by the respondent No.5 as per Annexure-G. c. Issue writ or order or direction in the nature of writ of mandamus directing the respondent No.1 to 3 to take appropriate steps for deletion of encumbrance in respect of loan due from respondent No.6 in respect of the properties bearing CTS No.2127/A-6 and 2128 situated in Kalammana Agasi, Hubballi, Dist: Dharwad by considering the representation at Annexure-C. d. Issue writ or order or direction in the nature of writ of mandamus directing the respondent No.5 to delete the encumbrance in respect of loan dur from respondent No.6 in respect of the properties bearing CTS No.2127/A-6 and 2128 situated in Kalammana Agasi, Hubballi, Dist.Dharwad. e. Issue writ or order or direction in the nature of writ of mandamus directing the respondent No.4 to consider the representation of the petitioner dated 09.02.2018 as per Annexure-E. f. Issue such other writ of directions, declarations, direction and orders as this Hon’ble court may deem fit to grant in the interest of justice and equity.
WP NO.105598/2018 : 4 : 2. The petitioner claims to be the purchaser of the property auctioned by respondent No.1. The petitioner though has been put in physical possession of the property and the name of the petitioner was entered in the CTS extract, the petitioner contend that there was encumbrance for a sum of Rs.6,00,000/- entered in fovour of respondent No.4 – Bank of Maharashtra, as regards the loan amount obtained by one Mohammad Abdulrazak from the said Bank of Maharashtra. 3. It is on account of the finding out about the said encumbrance, the petitioner approached the first respondent – State Bank of India, seeking for removal of the encumbrance on the ground that the auction has been conducted by the first respondent and the encumbrance ought not to have been found mentioned in the encumbrance certificate. 4. Sri. Shriharsh A. Neelopant, learned counsel for the petitioner submits that the petitioner had purchased the property under auction and having made payment of auction amount to respondents No.1 to 6, it is the duty
WP NO.105598/2018 : 5 : of respondent No.1 to remove any encumbrance available on record as regards the property auctioned. 5. Sri. Sourabh Sondur, learned counsel for respondents No.1 to 3 submits that the auction was conducted in the year 2011, whereas the encumbrance was entered in the year 2016, which is much subsequent to the auction and therefore, respondents No.1 to 3 has nothing to do with it. 6. Heard Sri. Shriharsh Neelopant, learned counsel for the petitioner and Sri. Sourabh Sondur, learned counsel for respondents No.1 to 3 and perused the papers. 7. The auction which has been conducted by the respondent No.1 was on “as is where is basis”, in terms of Schedule II of the Income Tax Act. Such being the case, any issue that a purchaser would have as regards any encumbrance or otherwise, would have been raised prior to the auction being conducted, once the auction proceedings are completed, the same cannot be raised.
WP NO.105598/2018 : 6 : 8. Be that as it may, in the preset case, there is no encumbrance found in the encumbrance certificate as on the date of auction, but entered subsequent to the auction at the time when another writ petition filed by the petitioner was pending challenging the forfeiture of the EMD amount paid by the petitioner. 9. The aspect of whether the encumbrance has been created properly or not, or whether the same has to be removed or not, cannot be adjudicated in a writ petition under Article 226 of the Constitution of India. The remedy for the petitioner would be to institute appropriate proceedings of civil nature before the jurisdictional court. 10. Hence reserving such liberty to the petitioner to institute comprehensive suit claiming necessary reliefs, the petitions are dismissed.
Sd/- JUDGE gab