Karnataka High Court
M Sampangi vs Mr Vijayashankar Rao on 27 September, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.18126/2013 (GM-RES)
BETWEEN:
M SAMPANGI
AGED ABOUT 47 YEARS
S/O LATE MUNIYAPPA
R/AT NO.154/9
1ST A MAIN, 8TH BLOCK
KORAMANGALA
BANGALORE 560075 ... PETITIONER
(BY SMT. C G ASHADEVI, ADV.)
AND:
1. MR. VIJAYASHANKAR RAO
NO.105-, 1ST BLOCK
NEAR FABMALL PARREL
TO 80 FEET ROAD
KORAMANGALA,
KARNATAKA
BANGALORE 560034
2. MR. AJAY KRISHNA RAO
NO.159, MILLAR DRS PALLTI
MADEPURA POST
K R PURAM HOBLI
BANGALORE EAST TALUK
BANGALORE 34
3. MR. NASA SANJAY KUMAR RAO
AGED ABOUT 46 YEARS
S/O NASA VIJAYA SAHANKAR RAO
R/AT NO.30, MANOR FIEKDS
2
NEW CASTLE, UPON ROAD,
TYNE BELTON, U.K. NE-12744,
REP. BY HIS GPA HODLER
SMT. NASA DHANNYA
AGED ABOUT 32 YEARS
W/O SRI NASA AJAY KRISHNA RAO
RESIDING AT NO.1051
"SAI NASA" OFF 80 FEET ROAD
1ST BLOCK, KORAMANGALA
BANGALORE 560034
4. MR. JAGURAJ
RAM DEV JEWELARY SHOP
8TH BLOCK, KORAMANGALA
BANGALORE 560095
5. LIC HOUSING FINANCE LTD
REP. BY ITS AUTHORISED OFFICER
SRI S MURALI KRISHNA
S/O NARAYANA RAO
AGED ABOUT 46 YEARS
15/1, HAYES CENTRE
HAYES ROAD
BANGALORE 560034
6. THE STATE OF KARNATAKA
KORAMANGALA POLICE STATION
KORAMANGALA
BANGALORE-95 ... RESPONDENTS
(BY SRI RAJESH SHETTY, ADV. FOR R5
SRI E S INDIRESH, HCGP. FOR R6
R4-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO DIRECT
THE 5TH RESPONDENT TO RESTORE THE POSSESSION OF THE
SUIT SCHEDULE PROPERTY TO THE PETITIONER & RESTRAIN
THE 5TH RESPONDENT TO NOT TO TAKE ILLEGAL EVICTION
FROM THE SUIT SCHEDULE PROPERTY VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING :
3
ORDER
The petitioner is before this Court seeking for issue of mandamus to direct respondent No. 5 to restore the possession of the suit schedule property to the petitioner and not to take illegal action for eviction from the suit schedule premises.
2. The case of the petitioner is that he is an absolute owner of the property described in the schedule. He and his family members are stated to be residing in the first floor. In respect of certain transaction for recovery of the loan amount by respondent No. 5, action was taken for taking possession of the property in exercise of the power under Sections 13 and 14 of the SARFAESI Act. When possession of the property was taken, the petitioner has approached this Court in the instant petition.
3. Several allegations have been made in the petition with regard to the manner in which the loan has been obtained by the respondents. It is contended that the property which rightfully belongs to the petitioner has been dealt with the respondents in a fraudulent manner. 4 Insofar as the right of the petitioner with regard to the property concerned, a civil suit is already stated to have been instituted. With regard to that aspect of the matter, the same in any event would not arise for consideration herein.
4. Respondent No. 5, apart from denying the other allegations has contended that the instant petition is not maintainable in view of the provision contained in Section 17 of the SARFAESI Act, where an appeal is provided to the Debts Recovery Tribunal.
5. Though the learned counsel for the petitioner contends that in a case where the petitioner is alleging that a fraud has been played while granting loan and in that view, the property belonging to the petitioner is being sought to be dealt with the respondents, the said remedy would not be an efficacious remedy, in my opinion, when such allegations are made, it is more appropriate that a comprehensive remedy by way of appeal is to be availed inasmuch as a remedy under Article 226 of the Constitution would not be available for deciding such 5 contentious issues relating to the right title and interest over the property.
6. In any event, without expressing any opinion on the rival contentions relating to the right to the property, keeping in view the fact that the Hon'ble Supreme Court in the case of Kanaiyalal Lalchand Sachdev and Ors vs. State of Maharashtra and Ors (2011(2) SCC 782) and in the case of United Bank of India vs. Satyawati Tondon and Ors (2010 AIR SCW 5267) has held that the appropriate remedy for any person when action is taken under Sections 13 and 14 of the SARFAESI Act is to file an appeal under Section 17 of the said Act, the said position is to be followed.
7. In the instant case, without adverting to the rival contentions on merits, the petitioner would have to be relegated to the appeal remedy. Hence, liberty is reserved to the petitioner to file such appeal within a period of three weeks. If such appeal is filed within three weeks, the Debts Recovery Tribunal would consider the 6 same on merits without reference to the delay, if any in filing the appeal inasmuch as the petition was pending before this Court. On the other hand, liberty is further reserved to the petitioner, if he chooses to proceed with the suit instead of the appeal. But the contentions of the respondents to oppose the suit on all issues are left open.
In terms of the above, the petition stands disposed of.
Sd/-
JUDGE hrp/bms