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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2018 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.35026 OF 2018 (GM RES) BETWEEN:
Mr.P.S.Vishwanath, S/o Pathi Shankar Narayan, Age 82 years, Partner, M/s Shankaranarayan Jewelers, No.129, D R Complex, 1st & 2nd Floor, DVG Road, Basavanagudi, Bangalore-560 004.
….Petitioner (By Sri.N Suresha, Advocate)
AND:
Lakshmi Vilas Bank Limited,
No.102-110, Avenue Plaza,
Avenue Road,
Bengaluru-560 002.
Represented by its Manager
M/s.Shankaranarayana Jewelers,
No.129, D R Complex,
1st and 2nd Floor, DVG Road,
Basavanagudi,
Bengaluru-560 004.
Represented by its partners
Sri. P V Mahesh,
S/o Sri P V Vishwanath,
Aged about 57 years,
No.8/13, Sai Kripa,
Chandrashekar Layout Road,
Bull Temple Road,
Basavanagudi,
Bengaluru-560 004.
…Respondents
(By Sri. Venkataramana M K, Advocate for C/R1)
This Writ petition is filed under Articles 226 and 227 of Constitution of India, praying to quash the orders in C.Mis.No.821/2018 on the file of 2nd ACMM, Bengaluru dated 26.04.2018 in Annexure-C and in C.Misc.No.3291/2018 on the file of the XXIV ACMM, Bengaluru dated 30.07.2018 vide Annexure-D etc.,
This petition coming on for Preliminary Hearing, this day, the Court made the following:
ORDER
Heard learned counsel appearing for petitioner and learned counsel appearing for respondents.
Orders dated 26.04.2018 and 30.07.2018 passed in C.Misc.No.821/2018 and C.Misc.No.3291/2018 respectively by the Jurisdictional Magistrate Courts, Annexure-C and D are called in question.
Under the impugned orders, learned Magistrate in exercise of power vested under Section 14 of Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act 2002 (‘SARFAESI Act’ for short) has permitted the secured creditor to take possession of the secured asset with the assistance of the Jurisdictional Police.
Having heard the advocate appearing for the parties and on perusal of records, it would disclose that petitioner herein had borrowed and been provided with credit facilities by respondent-Bank and said facilities extended to the petitioner has been classified as Non- Performing Asset (N.P.A) resulting in proceedings being initiated against the petitioner under Section 13 of the SARFAESI Act to recover the amount due. A claim for Rs.13,38,54,493.17/- was made by the respondent- Bank. In order to realise the amount due to it, respondent-Bank issued possession notice dated 18.08.2017 and being aggrieved by the same, petitioner herein filed an application in S.A.No.280/2017 before the Debt Recovery Tribunal-II, Karnataka, Bengaluru. In the said proceedings, petitioner undertook that he is ready and willing to pay the outstanding loan amount
within a period of three months from 08.05.2018. Tribunal after taking note of all the relevant facts into consideration, by order dated 08.05.2018 granted time till 08.07.2018 to the petitioner to clear the outstanding amount in the loan accounts and accordingly, S.A.No.280/2017 came to be disposed of on 08.05.2018 Annexure-R1. However, petitioner did not comply with the direction issued by the Jurisdictional Tribunal. It is thereafter secured creditor Bank has initiated proceedings under Section 14 of the SARFAESI Act to take possession of the secured asset. It is no doubt true at the first instance, the application under Section 14 of SARFAESI Act was filed on the file of II Additional CMM, Bengaluru. An order came to be passed on the said application on 18.06.2018 Annexure-C. However, secured creditor having noticed that the secured asset is located within the jurisdiction of Basavanagudi Police station has rightly filed another application under Section 14 of SARFAESI Act before the 24th Additional CMM, Bengaluru in C.Misc.No.3291/2018, which has been allowed by order dated 30.07.2018. As such, the
petitioner herein cannot be heard to contend that respondent-Bank is attempting to enforce two orders, even otherwise, facts on hand would disclose that the liberty extended by the Tribunal under Order dated 08.05.2018 passed in S.A.No.280/2017, has not been utilized by the petitioner. That apart, an order passed under Section 14 of SARFAESI Act is appealable under Section 17 of the SARFAESI Act. As such, this Court declines to interfere with the impugned orders under Article 226 of Constitution of India. In the light of the Authoritative pronouncement of the Hon’ble Apex Court in the case of AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER V/S MATHEW K.C (2018) 3 SCC 85 wherein it has been held the writ petition under Article 226 of Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well-defined exceptions as observed by Supreme Court in CHHABIL DASS AGARWAL V/S COMMISSIONER OF INCOME TAX AND OTHERS REPORTED IN (2014) 1 SCC 603 this Court is not inclined to entertain this writ petition.
In the instant case, exceptions carved in Chhabil Dass case is not to be found namely, impugned order is not assailed by the petitioner on the ground of jurisdiction nor the vires of a statute is challenged in instant case.
Apart from all these facts, learned counsel appearing for the respondent-Bank has made available the copy of the undertaking given by the petitioner on 16.08.2018 before the Bank undertaking to handover possession of the secured asset on or before 31.08.2018 which has also not been adhered to by the petitioner. For the reasons aforestated, this Court is of the considered view, that it is not a fit case to entertain this writ petition. Hence, writ petition is hereby dismissed.
SD/- JUDGE