Karnataka High Court
M/S.Patil Motors vs The Chief Manager And Authorised ... on 12 June, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWA D BENCH
DATED THIS THE 1 2 T H DAY OF JU NE, 2020
B EFORE
THE HON'B LE MR. JU STICE SACHIN SHANKAR MAGADUM
W.P.NO.105009/2020 (GM-RES)
&
W.P.NO.145336/2020
BETWEEN :
M/S PATIL MOTOR S,
RS.NO.289, PLOT NO.19- 20,
DHARWAD B YE PASS ROAD,
BAILHONGAL-591102,
REPRES ENTED BY ONE OF THE PART NER,
NANASAHEB S/O DEVANAGOU DA PAT IL,
AGE : 50 YEARS, OCC: BUSINESS,
R/O NEGINAHAL, TQ: B AILHONGAL,
DISTR ICT B ELAGAVI-591102.
... PETIT IONER
(BY SRI SRINIVAS B.NAIK ADVOCATE)
AN D :
1. THE CHIEF MANAGER AND AUT HORISED
OFFICER, ASSET RECOVERY MANAGEMENT
B RANCH, HUBBALLI, CTS NO.122/108,
P.B .NO.499, KARNATAKA BANK,
B U ILDING, 3 R D FLOOR,
NEW COTTON MARKET
HUBB ALLI,-580029 .
2. THE BRANCH MANAGER,
KARNATAKA B ANK,
B AILHONGAL B RANCH,
B AILHONGAL-591102.
... RESPONDENTS
(BY SRI PAVAN B .DODDATTI, ADVOCATE)
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THESE WR IT PET IT IONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITU TION OF INDIA PRAYIN G THIS
HON 'B LE COU RT TO ISSUE A WRIT IN T HE NAT URE OF
CERTIORARI QU ASHING OF HE POSSESS ION N OTICE
NO.OR-837/ 2019- 20 DATED 21. 11.2019 ISSU ED BY
RESPONDENT NO.1 VIDE ANNEX U RE-A AND SUCH OTHER
REL IEFS.
THESE PET IT IONS COMING ON FOR PREL IMINARY
HEAR ING, THIS DA Y, THE COURT MADE THE FOLLOWIN G:
: ORDER :
Heard learned counsel for the petitioner and the respondents.
2. The top noted writ petitions are filed by the petitioner questioning the possession notice issued by respondent No.1 as per Annexure-A. Being aggrieved by the possession notice issued by the 1 s t respondent vide Annexure-A, the petitioner is before this Court seeking a writ of certiorari to quash the possession notice vide Annexure-A. Further the petitioner is also seeking a writ of mandamus to direct the 1 s t and 2 n d respondents to extend One Time Settlement Scheme for repayment of dues as per the representation submitted by the petitioner vide Annexure-B. 3
3. On reading the averment made in the writ petitions, it is more in the nature of seeking a breathing time to settle the loan. No grounds are forthcoming in the writ petitions indicating any infraction of Rule and procedure contemplated under the Securitisation of Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("the Act" for short).
4. On perusal of the prayer, this Court is of the view that even otherwise the writ petitions are premature and not maintainable. The present writ petitions are filed questioning the possession notice issued by the 1 s t respondent under Section 13(4) of the Act. For better understating, the relevant portion of proviso to Section 13 of the Act is produced as under:
"13.Enforcement of security interest.-
(1) ................................
(2) ... ..............................4
(3)...............................
(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:--
(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset;
(b) take over the management of the business of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset:
Provided that the right to transfer by way of lease, assignment or sale shall be exercised only where the substantial part of the business of the borrower is held as security for the deb t:"
5. On Plan reading of sub-section (4) of Section 13 of the Act contemplates that, in case borrower fails to discharge his liability in full within the period specified in sub-section (2) the secured 5 creditor may take recourse to one or more of the following measures to recover his secured debt. In response to the notice issued by the 1 s t respondent vide Annexure-A, the petitioner has submitted a representation as per Annexure-B. The petitioner relying of this representation is requesting this Court to issue a writ of mandamus.
6. The Hon'ble Supreme Court in catena of judgments time and again has been directing the various High Courts not to entertain writ petitions pertaining to disputes arising out of secured debts which squarely fall within domain of the Act. In the light of the proposition laid down by the Hon'ble Apex Court in the case of Federal Bank Limited Vs. Sagar Thomas and others reported in (2003) 10 Supreme Court Cases 733 and also latest judgment reported in (2018) 3 Supreme Court Cases 85 in the case of Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C., this Court is of the view that, none of the 6 grievances urged in the writ petitions can be examined by this Court.
7. Technically speaking the present writ petitions are premature. The authority having issued a possession notice under Section 13(4) of the Act, in the event of borrower failing to discharge his liability has recourse to take possession of the secured asset or takeover the management of the business in given case on hand since authority has not exercised that right, the first prayer cannot be considered.
8. Insofar as the second prayer seeking a writ of mandamus is concerned, it is open for the petitioner to approach respondents-Bank and seek for One Time Settlement. But this Court cannot issue a direction to respondents-Bank. If One Time Settlement Scheme is available, the petitioner is at liberty to exercise the same.
7
9. In the light of the above said discussion, this Court is of the view that the top noted writ petitions are not maintainable. The grounds urged in the writ petitions cannot be considered by this Court in the light of the dictum laid down by the Hon'ble Apex Court in the above said judgments. Accordingly, the writ petitions being devoid of merits stand dismissed.
No order as to costs.
Sd/-
JU DGE EM /-