Karnataka High Court
Mr. N. Sreenivasa vs M/S. Intertek India Pvt. Ltd., on 9 November, 2020
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.10761 OF 2020 (GM-CPC)
BETWEEN:
MR. N. SREENIVASA,
AGED ABOUT 59 YEARS,
S/O MR. R. NARAYANA SETTY,
RESIDING AT NO.208, 2ND MAIN ROAD,
MAHALAKSHMI LAYOUT,
BANGALORE-560 086. ...PETITIONER
(BY SRI. S. KALYAN BASAVARAJ, ADVOCATE.)
AND
1. M/S INTERTEK INDIA PVT. LTD.,
HAVING ITS REGISTERED OFFICE
AT NO.E-20, BLOCK B-1,
MOHAN CO OPERATIVE INDUSTRIES
ESTATE, MATHURA ROAD,
NEW DELHI-110 044,
REPRESENTED BY ITS DIRECTOR.
2. M/S JANATHA SEVA
CO-OPERATIVE BANK LTD.,
NO.14, RAJATHA BHAVANA,
1ST MAIN ROAD, HAMPINAGARA,
VIJAYANAGAR, 2ND STAGE,
BANGALORE-560 104. ...RESPONDENTS
(BY SMT. JAYNA KOTHARI ADVOCATE FOR
SRI. ROHAN KOTHARI ADVOCATE FOR R1;
SRI. K.V.LOKESH ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ORDER PASSED ON IA NO.2 FILED UNDER ORDER 1 RULE
2
10 OF CODE OF CIVIL PROCEDURE IN O.S.NO.25844/2020
DTD.3.9.2020 VIDE ANNEXURE-J BY LVII ADDL CITY CIVIL
AND SESSIONS JUDGE MAYO HALL UNIT, BENGALURU
(CH-58) AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY THROUGH VIDEO CONFERENCE, THE COURT MADE
THE FOLLOWING:
ORDER
Petitioner being the plaintiff in an injunctive suit in O.S.No.25844/2000 is at the door steps of the Writ Court for assailing the order dated 3.9.2020 a copy whereof is at Annexure-J whereby the learned LVII Addl. City Civil Judge, Mayo Hall Unit, Bangalore, (CCH-58), having allowed the application filed by the 2nd respondent-mortgagee Bank under Order I Rule 10 of CPC, 1908, has permitted its impleadment as 2nd defendant to the suit.
2. After service of notice, the respondents having entered appearance through their respective counsel, resist the writ petition making submission in justification of the impugned order and the reasons on which it is structured.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines to 3 grant indulgence in the matter with some observations as under and for the following reasons:
(a) The jural relationship of petitioner and 1st respondent as being land lord and tenant respectively is not in dispute; the subject property is mortgaged to 2nd respondent-Bank is also not in dispute; the transfer as defined u/s 5 of the Transfer of Property Act, 1882 inter alia includes lease and mortgage wherein vested interest is created in favour of the transferees i.e., lessees and the mortgagee as the case may be; where such a limited transfer takes place, the ownership rights of the transferor to that extent stand diminished; that being the position, an injunctive suit of the kind will have repercussions on the interest of the limited transferees like the mortgagee-Bank and therefore, it will have a say in the matter; thus, the mortgagee-Bank is a proper party to the proceedings if not a necessary party in the light of the law declared by the Apex Court vide Razia Begum Vs. Sahebzadi Anwar Begum, AIR 1958 SC 886.
(b) The contention of the learned counsel for the petitioner that in a suit for bare injunction, for restraining the lessee from subletting the property, the 2nd respondent-Bank 4 has no role to play, is bit difficult to countenance, especially when the suit property being a subject matter of registered mortgage is sought to be auctioned pursuant to orders made under the provisions of SARFAESI Act, 2002, as rightly contended by the Panel Counsel for the Bank; in fact, petitioner had filed W.P.No.52331/2019 (GM-RES) against the 2nd respondent-Bank seeking a Writ of Certiorari for quashing the Possession Notice dated 25.11.2019 and the same came to be dismissed by a Co-ordinate Judge of this Court vide order dated 17.12.2019; it is submitted at the Bar that the petitioner has obtained an order for receiving the rents from the tenant; this fact itself gives sufficient locus to the respondent-Bank which has taken over the loans and securities from another lender and that pursuant to the same the petitioner has given up his right to receive the rents in favour of the respondent-Bank itself; the conduct of the petitioner-borrower is thoroughly tainted with unconscionability and such a person cannot be granted a discretionary relief by a writ court exercising extraordinary jurisdiction.
(c) The contention of the learned Sr. Advocate for the 1st respondent-tenant that it will be in difficulty in the event 5 auctioning of the subject property pursuant to order under the provisions of SARFAESI Act, 2002 would put the tenant in difficulty in protecting its tenancy rights and obligations, does not have much substance, as rightly contended by the learned panel counsel for the Bank who assures that the tenancy interest shall not be affected by the intended auction and that the auction purchaser would stand in the shoes of the petitioner-land lord with all the corresponding obligations including the liability to refund the deposit; in other words, the immediate possession of the respondent-tenant would continue and the mediate possession thereof would be with the intending buyer in the auction.
(d) It hardly needs to be stated that in view of the arrangement between the petitioner and the 2nd respondent-
Bank, the rents that have accrued and accruing due shall be deposited in the court below for the benefit of the 2nd respondent-Bank subject to the rider that so much of the amount that is refundable by way of deposit shall be retained by the Bank for refunding the same to be respondent-tenant on the determination or termination of the lease in question; any order made by the court below in variance with this shall not come in the way of the respondent-tenant depositing the 6 rental dues regularly in the court below which shall hold in trust for the benefit of and release in favour of the 2nd respondent-Bank only; an argument to the contrary cannot be countenanced without risking the interest of the mortgagee-Bank to the unconscionable advantage of the petitioner; if necessary, the court below shall make a clarificatory order in this regard, as well.
In the above circumstances, this Writ Petition being devoid of merits, is liable to be rejected and accordingly, it is, costs having been made easy.
The observations herein above made being confined to disposal of this Writ Petition shall not influence the trial & decision making in the subject suit.
Sd/-
JUDGE cbc