Karnataka High Court
Sri Mathew Joseph Charles vs India Bulls Housing Finance Ltd on 17 October, 2017
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION Nos.47166-47167/2017 (GM-RES)
BETWEEN:
1. SRI MATHEW JOSEPH CHARLES
S/O.CHARLES
NO.16, GROUND FLOOR
2ND BLOCK, 2ND CROSS
AKSHAYANAGAR
RAMAMURTHYNAGAR
BENGALURU-560 016.
2. SRI.C. RAJ KUMAR
AGED ABOUT 42 YEARS
S/O LATE R. CHANDRAN
NO.16, GROUND FLOOR
2ND BLOCK, 2ND CROSS
AKSHYANAGAR
RAMAMURTHYNAGAR
BENGALURU-560 016. ... PETITIONERS
(BY SRI. N.S.SHESHADRI N.S, ADV.)
AND:
1. INDIA BULLS HOUSING FINANCE LTD
NO.81, PREKSHA BUILDING
B/W 10TH AND 11TH CROSS
TEMPLE STREET
MALLESWARAM
BENGALURU-560 003.
REP.BY ITS MANAGER.
2
2. THE AUTHORISED OFFICER
INDIA BULLS HOUSING FINANCE LTD.,
NO.81, PREKASH BUILDING
B/W 10TH AND 11TH CROSS
TEMPLE STREET
MALLESWARAM
BENGALURU-560 003.
3. M/RS. BROSBEL ENGINEERING PVT. LTD.
NO.184, 1ST CROSS,
MUNINANJAPPA LAYOUT
BEHIND BP BUNK
RAMAMURTHYNAGAR
BENGALURU-560 016.
REP. BY ITS DIRECTOR.
4. SRI. MERVIN RICH
RESIDING AT NO.09, 16TH CROSS
2ND BLOCK, AKSHYANAGAR
BENGALURU-560 016. ... RESPONDENTS
(BY SRI. FRANCIS XAVIER, ADV. FOR C/R1)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DTD:7.10.2017, PASSED BY THE X ADDL.
CHIEF METROPILITAN MAGISTRATE, BENGALURU IN C.MIS
NO.50008/2016 AS PER ANNEXURE-S AND DIRECT
THE R-1 & 2 BANK AUTHORITIES NOT TO DISPOSSESS
THE PETITIONERS WITHOUT DUE PROCESS OF LAW.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioners are before this Court assailing the order dated 07.10.2017 passed in C.Mis.No.50008/2016 3 and in that light, the petitioners are seeking that the respondents No.1 and 2 be directed not to dispossess the petitioners from the petition schedule property.
2. The petitioners claim to be the tenants in respect of the secured asset which is indicated as the schedule property. In that light, the petitioners contend that their right as available to them to continue in possession of the secured asset cannot be taken away by the respondents No.1 and 2 by exercising the provisions as contained in the SARFAESI Act.
3. Though contentions have been urged by the learned counsel for the petitioners to contend that the learned Magistrate while passing the order dated 07.10.2017 has not appropriately considered the right as claimed by the petitioners as tenants in respect of the property, as rightly pointed out by the learned counsel for the Caveator, all contentions in that regard can be urged in an appeal as contemplated under Section 17(4A) of the SARFAESI Act to be filed by the petitioners before 4 the Debts Recovery Tribunal ('DRT' for short), if they are aggrieved. In that regard, having taken note of the provision as contained in the Act and also the order dated 31.07.2017 passed by this Court in W.P.No.29622/2017, the petitioners in any event would have the liberty of filing an appeal as contemplated therein.
4. Therefore, until such appeal filed by the petitioner is taken up for consideration by the DRT and disposed of in accordance with law, certainly, the petitioners would have to be granted some protection by this Court.
5. Accordingly, the instant petitions are disposed of reserving liberty to the petitioners to file an appeal as provided under Section 17(4A) of the SARFAESI Act. However, until the appeal is filed and taken up for consideration by the DRT, the respondents shall not disturb the physical possession of the petitioners. The protection as granted is however subject 5 to the condition that the petitioners file such appeal before the DRT within a period of four weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE ST