Karnataka High Court
M/S Shree Shantadurga Cashew ... vs The Tahashildar on 27 March, 2023
-1-
WP No. 102035 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.102035 OF 2023 (GM-RES)
BETWEEN:
M/S SHREE SHANTADURGA CASHEW INDUSTRIES
R/BY ITS PROPRIETRIX
SMT. SUNITA ALIAS SUNITI SHRIDHAR KAMAT
AGE. YEARS, OCC. BUSINESS,
R/O. NEAR DEVAKI KRISHNA TEMPLE,
HERWATTA KUMTA-581332
DIST. UTTAR KANNADA
...PETITIONER
(BY SRI. B V SOMAPUR, ADVOCATE)
AND:
1. THE TAHASHILDAR
KUMATA, DIST. UTTAR KANNADA
2. THE BRANCH MANAGER,
CANARA BANK, SME BRANCH,
Digitally
SUBHASH ROAD, KUMTA-581343
signed by
YASHAVANT
DIST. UTTAR KANNADA
NARAYANKAR
Location: High
Court of
Karnataka,
...RESPONDENTS
Dharwad
Bench (BY SRI.PRASHANT V MOGALI, HCGP FOR R1)
(BY SRI. SHIVASAI M PATIL, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT
OF CERTIORARI QUASHING/SETTING ASIDE THE IMPUGNED
NOTICE DATED 18/03/2023, PASSED BY THE 1ST RESPONDENT
IN NO.RRC/CR/50/2020-21 VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
-2-
WP No. 102035 of 2023
ORDER
The captioned writ petition is by borrower questioning the auction notice issued by the 1st respondent pursuant to the order passed under the provisions of SARFAESI Act.
2. The present petitioner has filed the instant writ petition before this Court alleging that since Debt Recovery Tribunal ("the DRT" for short) has adjourned the matter to June-2023 and the DRT is now not functioning, the petitioner is entitled for some protection.
3. If appeal filed by the petitioner is pending since 2021 before the DRT, nothing prevented him from seeking prohibitory orders at the hands of DRT. The petitioner cannot take advantage of the fact that, the DRT is not functioning. If the order passed under Section 14 was challenged before DRT way back in the year 2021, nothing prevented the petitioner from seeking suitable prohibitory order at the hands of the DRT.
-3-WP No. 102035 of 2023
4. The notification issued by the DRT indicates that, there is no sitting only till March 2023 i.e., for four days. The borrower who has failed to comply the action of the Bank under Section 13(2) of the SARFAESI Act, cannot knock the doors of the writ Court, on the premise that DRT is not sitting for four days.
5. The Division Bench of this Court, in W.A.No.1305/2021 disposed on 23.12.2021, while taking cognizance of judgment rendered by the Hon'ble Apex Court in the case of K.Virupaksha and another Vs. State of Karnataka1 has held that the SARFAESI Act is complete code in itself which provides procedure to be followed by the secured creditor. The Division Bench further held that the SARFAESI Act also contemplates remedy for a borrower. The Hon'ble Apex Court in the case of K.Virupaksha (cited supra) taking note of the authority vested with DRT under sub-section (3) in Section 17 has held that the Legislature by including sub-section (3) in 1 (2020) 4 SCC 440 -4- WP No. 102035 of 2023 Section 17 has gone to the extent of vesting the DRT with authority to even set-aside a transaction including sale and to restore possession to the borrower in appropriate cases. Therefore, the Apex Court has come down heavily on High Courts entertaining writ petitions questioning the orders passed under the provisions of SARFAESI Act which squarely fall within the domain of DRT. The principles laid down by the Apex Court in the judgment cited supra followed by the Division Bench, binds on this Court.
6. Accordingly, writ petition stands dismissed.
SD/-
JUDGE EM List No.: 3 Sl No.: 1