Karnataka High Court
Abdul Zaheer Azeez vs Syed Ismail on 24 October, 2011
Author: B.S.Patil
Bench: B.S.Patil
IN THE HIGH COURT OF KARNATAKA AT BANGALORE. DATED THIS THE 247™ DAY OF OCTOBER, 2011 > BEFORE THE HON'BLE MRJUSTICE B.S.PATIL. W.P.No.33497/2011 (GM-ESFC) BETWEEN: Abdul Zaheer Azeez, S/o Ageez Khan Aged about 41 vears, No.96/1, B Cross, 4h Main, Kauser Nagar, R.T. Nagar Post, er re Bangalore-32. 6 a .. PETITIONER (By Sri A.Kumaravel, Adv.) -_ . AND: ilereeet Poeeeics dl eyed ismail, . Sf Gulam Dastagir.... _ Aged about 60 vears, " Rfat Ne.4, Kalasipalvam Main Road, ~Bangaloré.02.-. ue 2 OT he Karnutaka State Financial Corporation, _ No.48. 1% & 294 Floor, . "Church Street, - Bangalore-O1, "Rep. by its General Manager. .. RESPONDENTS
Jey Sri Bipin Hegde, Adv. for R2) 'This writ peliiion is Mied under Articles 226 & 227 of the Constitution of India. praying to quash the sale notice dated 19.5.2011 vide Annexure-D and to issue any other writ or order or directions, restraining the respondent No 2 . irom dispossessing the petitioner from the said property. unite ss. ind © until the petitioner is dispossessed in due course of law and etc. This petition coming on for prelpninary hearing this day the Court made the following:
lL. In this writ petition, petitioner is: challenging the sale nolice dated [9:05.201 1 issued "by "the Ons respondent -- Karnataka State' F inancial c sepor 'ation (for short, 'the Corporation) | vide Annexure-D ; bringing the plant and machinery of the st resporient ior sale for recovery of the loan amount advanced tothe [s' respondent.
OL: _ Petitioner claims to be the tenant in actual physical jon of the's shop bearing No.212 situated at Kalasipalya, Hangalore 560 O0Z consisting of ground and 1" floor. It is the 4 . "Case of the petitioner that he has recently learnt abouf the I resp ondent having availed the loan from the 2°¢ respondent "otfering the property in question as security for the loan availed. Aces ording to the petitioner the officer of the 28¢ respondent -- _ "v vet Cid Corporation have been regularly visiting the property demanding the loan amount and making hectic efloris tc seit the property. A notice of public auction in this regard is issued on 19.05.2011 as per Anmexure-D. 7
3. Apprehending his dispossession "from the. property without resorting to legal methods" by -the Dist respondent ~ Corporation, petitioner has-filed chis writ petition to protect his rights.
4. It is coniended by the learned counsel for the petitioner that the Zid respondent cannot take law into their hands and dispossess the petitioner forci piy and that the only remedy available to the petitioner is to take symbolic possession of the ~ property and te sell the same and thereafter it would be o peri to ihe purchaser to take possession in accordance with law.
-. Ba, Learned counsel for the respondent - Corporation ~ 'submits that the pelilioner cannot challenge the legality and o . correctness of the action of the 2°¢ respondent in bringing the plant and machinery for sale to realise the loan amount due from the i* respondent. It is the case of the respondent Corporation that they have not yet brought the property igt sale and that what is proceeded against is only the plant | "and machinery which have been hypothecated in tavoue r the. Corporation. He further submits thatas re gals dis possession:
of the petitioner irom the premises in question, the s same wi an be done only in accordance with law,
6. In the light of the submissions 'nade at the Bar and the contentions raised by the learned counsel for the parties, 1 find that admittedly, the ie operty is the si ; bject matter of morigag and the plant * and machinery ae "aso subject matter of hypothe vation, in facour of ine 201 respondent -- Corporation. If that is so, the, Corporation is entitled to proceed against them in epeverreeerdos weyers. egrid ts CULE CIgEE DOO MELE n : : However; as tigh tly contended by the learned counsel for the D stitioner, pet lioner cannot be dispossessed from the : _ property without the 2°¢ respondent taking recourse to the ' provisions of law. The 2°¢ respondent at best can take only * . symbolic possession of the property which is stated to be in possession of ihe petitioner. Therefore, this writ petition is
2.
disposed of declining to interfere with the challenge made with an occupation can only be dispossessed in accordance and not by using process, PES outside following regard to Annexure-D making it clear that the tenant in with. law a ae OLAS wee ayy Vokes