Karnataka High Court
Mr. Vyasaraj K.R vs M/S Vijaya Bank on 12 March, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
1/8
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION Nos.25157-25158/2017
C/W
W.P.NO.47398/2017(GM-RES)
BETWEEN
MR. VYASARAJ K.R
S/O K S RAGHAVENDRA RAO,
AGED ABOUT 56 YEARS,
R/AT NO.712, IST CROSS,
IST C MAIN, GIRINAGAR,
BENGALURU-560058
... PETITIONER
(COMMON)
(BY SMT : KAVITHA D, ADV.)
AND
M/S. VIJAYA BANK
MAYO HALL BRANCH,
M.G.ROAD,
BENGALURU-560001
REP BY ITS CHIEF
MANAGER/AUTHORISED OFFICER
... RESPONDENT
(COMMON)
(By Sri : NAGARAJ DAMODAR, ADV.)
W.P.NOS.25157-158/2017 ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE IMPUGNED DEMAND NOTICE DTD.23.2.2017 AND
POSSESSION NOTICE DTD.8.5.2017 PUBLISHED IN INDIAN
Date of Order 12-03-2018 W.P.Nos.25157-25158/2017
C/W W.P.No.47398/2017
Mr. Vyasaraj K.R Vs. M/s. Vijaya Bank
2/8
EXPRESS NEWSPAPER DTD.13.5.2017 VIDE ANNEX-C & F AND
ETC.
W.P.NO.47398/2017 IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED SALE NOTICE DATED 22.09.2017 PUBLISHED
IN INDIAN EXPRESS NEWS PAPER DTD:24.09.2017 UNDER
ANNEXURE-K.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Ms. Kavitha D., Adv. for Petitioner Mr. Nagaraj Damodar for Respondent The petitioner Mr.Vyasaraj K.R. S/o K.S.Raghavendra Rao has filed two writ petitions namely W.P.Nos.25157-158/2017 and W.P.No.47398/2017 in this Court on 09.06.2017 and 17.09.2017 against the Respondent-Vijaya Bank aggrieved by the impugned action of the Respondent- Bank under SARFAESI Act, 2002 for realization of the dues. The prayers made in the writ petitions are as follows:
Date of Order 12-03-2018 W.P.Nos.25157-25158/2017 C/W W.P.No.47398/2017 Mr. Vyasaraj K.R Vs. M/s. Vijaya Bank 3/8 " W.P.Nos.25157-158/2017
(a) Issue Writ in the nature of Certiorari and set aside the impugned Demand Notice dated 23.02.2017 and Possession Notice dated 08.05.2017 published in Indian Express News Paper dated 13.05.2017 under Annexure-C & F:
(b) Issue necessary directions to Respondent to reverse the penal, compound interest and other charges debited to his loan account and determine the exact 'legally dischargeable debt';
(c) Issue such other Writ, order or direction/s as may be deemed fit to grant in the given circumstances of the case in the ends of justice and equity"W.P.No.47398/2017
(a) Issue Writ in the nature of Certiorari and set aside the impugned Sale Notice dated 22.09.2016 published in Indian Express News Paper dated 24.09.2017 under Annexure-K;
(b) Issue such other Writ, order or direction/s as may be deemed fit to grant in the given circumstances of the case in the ends of justice and equity"
Date of Order 12-03-2018 W.P.Nos.25157-25158/2017 C/W W.P.No.47398/2017 Mr. Vyasaraj K.R Vs. M/s. Vijaya Bank 4/8
2. The Cognate bench of this Court on 12.02.2018 passed the following order:
"Through the orders dated 07.12.2017 and 08.01.2018, this Court had indicated that if the petitioner does not put forth any proposal for settlement, further consideration would not arise. Though proposal had been put forth, learned counsel for respondent-Bank would bring to the notice of this Court that the proposal as put forth by the petitioner would not satisfy the requirement of the OTS scheme and therefore, through the communication dated 29.01.2018 the said proposal has not been accepted by the respondent.
The learned counsel for the petitioner would however submit that since the proposal has been declined on the ground that the quantum as suggested was not to the extent as provided under the scheme, the petitioner would consider making a better offer for settlement. Since such contention is put forth, in order to see that the petitioner establishes the bonafides and thereafter negotiates with the respondent-Bank, the petitioner is directed to deposit a sum of Date of Order 12-03-2018 W.P.Nos.25157-25158/2017 C/W W.P.No.47398/2017 Mr. Vyasaraj K.R Vs. M/s. Vijaya Bank 5/8 Rs.25,00,000/- with the respondent Bank within two weeks from this day and put forth the further proposal for settlement. Such proposal to be put forth shall be negotiated between the parties in an expeditious manner and a decision be taken immediately. Thereafter, based on the same further consideration would arise.
List after three weeks."
3. The learned counsel for the petitioner has produced before this Court a Memo along with the copy of the Representation of the petitioner dated 05.03.2018 sent by RPAD to the Respondent-Bank along with a cheque of ` 25 Lakhs drawn in favour of Vijaya Bank Loan A/c No.CCH-11460621100016 subject to the condition that the Respondent-Bank would accept the balance amount of ` 01 Crore within six months as full and final settlement of loan which is said to be to the extent of ` 1.70 Crores.
Para 4 of the said Representation is quoted below for ready reference:
Date of Order 12-03-2018 W.P.Nos.25157-25158/2017 C/W W.P.No.47398/2017 Mr. Vyasaraj K.R Vs. M/s. Vijaya Bank 6/8 "That, we are herewith forwarding a Cheque for Rs.25,00,000/- (Rupees twenty five lakhs only) drawn in favour of "Vijaya Bank - Loan Account No.CCH-
11460621100016". In token of acceptance of this fresh proposal of enhancing the settlement amount, you may please confirm the same and thereafter realize this Cheque with due intimation to us. Upon receiving confirmation from your end we shall pay the balance settlement amount of Rs.1,00,00,000/- (Rupees one crore only) within six months time."
4. After hearing the learned counsels, this Court is of the opinion that the present petitioner has played smart and has not complied with the terms and conditions of the order passed by the cognate bench of this Court, in its true letter and spirit, which had allowed the petitioner to deposit a sum of ` 25 Lakhs with the Respondent-Bank within two weeks' from 12.02.2018. The order was passed in the presence of Date of Order 12-03-2018 W.P.Nos.25157-25158/2017 C/W W.P.No.47398/2017 Mr. Vyasaraj K.R Vs. M/s. Vijaya Bank 7/8 the learned counsel for the petitioner, therefore, supply of the certified copy belatedly, even if assumed to be true, as contended by the learned counsel for the petitioner, does not affect the compliance within the time frame given by the Court.
Moreover, the compliance as shown to have been made by the petitioner is also conditional and insists upon the Respondent-Bank to accept the OTS proposal to settle the entire dues restricting it to ` 1 Crore and that too to be paid within six months. The petitioner cannot shackle down the Respondent-Bank and dictate terms for settlement. In this regard, the OTS settlement of the outstanding loan is a consensual contract or agreement, which the parties can enter into by choice. The petitioner-borrower cannot be allowed to dictate terms to the Respondent-Bank that too by abusing the process of this Court in the aforesaid Date of Order 12-03-2018 W.P.Nos.25157-25158/2017 C/W W.P.No.47398/2017 Mr. Vyasaraj K.R Vs. M/s. Vijaya Bank 8/8 manner. Such an approach cannot be appreciated by this Court.
5. The writ petitions are therefore liable to be dismissed and the same are dismissed without any intervention with the Respondent-Bank to take action under the provisions of the SARFAESI Act.
Sd/-
JUDGE TL