Karnataka High Court
Sri Gopinath R Somayaji vs Kotak Mahindra Bank Ltd. on 14 October, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER 2015
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.43164 OF 2015 (GM-RES)
BETWEEN:
Sri. Gopinath R Somayaji,
Son of Ramachandra P Somayaji,
Aged about 46 years,
Having office at No.521,
13th Main, M.S.Ramaiah Enclave,
Tumkur Road, Hesaraghatta Cross,
Bangalore 560 073.
Also at:
No.114, 1st Cross,
14th Main, HMT Layout,
Vidyanarayanpura,
Bangalore 560 073.
...PETITIONER
(By Shri Nagabhushana .S, Advocate)
AND:
Kotak Mahindra Bank Limited,
(Erstwhile ING Vysya Bank Limited),
Regional Office, Structured Credits Group,
2
No.489, First Floor,
Avenue Road,
Bangalore 560 002,
Represented by its Authorized Officer.
...RESPONDENT
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the notice of sale of
immovable property by inviting tenders/ bids cum public
auction dated 27.8.2015 vide Annexure-C.
This Writ Petition is coming on for Preliminary Hearing
this day, the court made the following:
ORDER
The present petition is filed in the background that the petitioner had mortgaged his property with the respondent as a collateral security to the loan obtained by M/s. Globose Systems & Solutions Inc. The petitioner who was said to be a partner of the said firm is before this Court questioning the notice issued under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act', for brevity).
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2. The petitioner is said to have issued a reply stating that they are depositing a sum of Rs.5,00,000/- and they would deposit another Rs.5,00,000/- a month thereafter, as on 29.06.2015. However, the respondent is said to have issued a further notice under Section 13(4) of the SARFAESI Act. The petitioner had issued a reply. However, the respondent has now, on 27.08.2015, issued an auction sale notice inviting bids from the public to bring the property to public auction. It is that which is sought to be challenged in this petition.
3. In the case of United Bank of India vs. Satyawati Tondon and Other (2010) 8 SCC 110, after having considered the case law on the point, the Supreme Court has expressed that the High Court had misdirected itself in assuming that the appellant - United Bank of India could not have initiated action against the respondent No.1 - guarantor without taking steps for recovery of dues from the borrower - Respondent No. Further, the Apex Court had held that if the Respondent No.1 had any 4 tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, the remedy was to file an application under Section 17(1) of the SARFAESI Act and that the remedies available to the aggrieved person under the SARFAESI Act are both expeditious and effective and the High Court having overlooked that circumstance and having overlooked the settled law, the High Court ought not to have entertained a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. Therefore, that in all such cases, the High Court must insist that before availing the remedy under Article 226 of the Constitution, a person must exhaust the remedy under the relevant statute.
4. In view of the above ruling of the Apex Court, it is unfortunate that this Court cannot extend any kind of relief to 5 the petitioner herein. The petitioner is left to his remedies. The petition stands disposed of accordingly.
Sd/-
JUDGE KS