Sri B K Vijaya Babu vs Ing Vysya Bank on 3 October, 2012

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Karnataka High Court

Sri B K Vijaya Babu vs Ing Vysya Bank on 3 October, 2012

Bench: B.S.Patil

                                                  WP 40096/2012
                               1



     IN THE HIGH COURT OF KARNATAKA AT BANGALORE

        DATED THIS THE 3RD DAY OF OCTOBER, 2012

                           BEFORE

            THE HON'BLE MR.JUSTICE B.S.PATIL

                W.P.No.40096/2012 (GM-RES)

BETWEEN:

SRI B.K.VIJAYA BABU
S/O LATE V. KRISHNAMURTHY
AGED ABOUT 45 YEARS
R/AT NO.289,
52ND CROSS, IV BLOCK,
RAJAJINAGAR,
BANGALORE-10.                       ... PETITIONER

(By Sri. NAGAIAH, ADV.)

AND

1.    ING VYSYA BANK
      1091, S.R.N.G. DIAMOND COMPLEX,
      OPP. SHARADA TALKIES,
      NAGARATHPET, OTC ROAD,
      BANGALORE
      REP.BY ITS OFFICER PADMA KUMAR S.

2.    SRI. R.SAJESH
      S/O V.T. RATHNAKAR
      AGED ABOUT 35 YEARS
      R/AT NO.3334, "REVATHI"
      DWARAKANAGAR,
      HESARAGHATTA MAIN ROAD,
      CHIKKABANAVARA
      BANGALORE-90.                 ... RESPONDENTS


     This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the impugned order
passed by the VII ACMM, Bangalore dated 30.1.2009 vide
Annexure-D and etc.
                                                       WP 40096/2012
                                  2




      This petition coming on for preliminary hearing-B group
this day, the Court made the following:

                               ORDER

1. In this writ petition, petitioner is challenging the order dated 30.01.2009 passed by the VII Additional Chief Metropolitan Magistrate, Bangalore, in Crl. Mis. No.111/2009 and also the paper publication issued on 05.09.2012 by respondent No.1-Bank in Kannada Prabha daily newspaper bringing the property in question for sale by way of auction to recover the dues payable by respondent No.2.

2. It is not in dispute that the property in question is offered as security for payment of loan in favour of respondent No.2. It is also not in dispute that the bank has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the Act') against respondent No.2 for realization of the dues and that the impugned proceedings both before the Magistrate and also for bringing the property for sale by way of public auction are the result of the action for recovery of dues initiated under the Act by respondent No.1-Bank.

WP 40096/2012

3. The case of the petitioner is that respondent No.2 has committed fraud and has cheated the petitioner by taking his signatures and creating a registered sale deed in his favour in respect of the property, which was absolutely owned by the petitioner. It is the further case of the petitioner that he has already filed a suit before the Civil Court seeking a declaration that the sale deed was obtained by fraud and was therefore null and void, but as he was unable to pay the court fee, he has filed the suit as an indigent person and therefore no interim order could be obtained in the said suit. In the meanwhile, as the property is brought for sale, petitioner has approached this Court.

4. Having heard the learned Counsel for the petitioner and on perusal of the pleadings and the materials on record, I find that this Court cannot embark upon an inquiry into the allegations and assertions made by the petitioner regarding fraud and cheating allegedly committed by respondent No.2 in obtaining the registered sale deed in his favour of the property belonging to the petitioner. Such allegations have to be urged and established in accordance with law before the appropriate forum. If the petitioner is aggrieved by the action initiated by WP 40096/2012 4 the bank under the provisions of the Act, it would be open to the petitioner to avail the alternative remedy of approaching the Debts Recovery Tribunal in accordance with law.

5. Therefore, there is no room for interference in such matters in exercise of the writ jurisdiction. Keeping open all the contentions and reserving liberty to the petitioner to pursue the alternative remedy, this writ petition is dismissed.

Sd/-

JUDGE KK

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