Karnataka High Court
Smt Lakshmamma vs Phoenix Arc Pvt Ltd on 3 August, 2020
Author: G.Narendar
Bench: G.Narendar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W.P.NO.8797/2020 (GM-RES)
BETWEEN
1. SMT LAKSHMAMMA
W/O LATE BAYYAREDDY
C/O VIJAY GOPAL,
AGED 63 YEARS,
NO 125, 2ND MAIN ROAD,
BHARATHI LAYOUT,
S G PALYA, DRC POST,
BANGALORE - 560029.
2. SMT PANKAJA J
W/O SRI SHIVA KUMAR
AGED 32 YEARS
96, 3RD FLOOR,
3RD CROSS, 16TH MAIN,
HONGASANDRA,
MICO LAYOUT,
BEGUR MAIN ROAD
BANGALORE - 560068.
...PETITIONERS
(BY SMT. SANDHYA U PRABHU, ADV.)
AND
1. PHOENIX ARC PVT LTD
REPRESENTED BY
ITS AUTHORIZED OFFICER
DANI CORPORATE PARK,
5TH FLOOR, 158, C S T ROAD,
KALINA, SANTA CRUZ (E)
MUMBAI - 400098.
W.P.NO.8797/2020
2
2. M/S SLV HOTELS
NO 45, 17TH MAIN ROAD,
4TH BLOCK, KORAMANGALA,
BANGALORE - 560034
REPRESENTED BY
ITS MANAGING PARTNER
SRI K C MURALIKRISHNA.
3. SRI K C MURALIKRISHNA
S/O CHINNAPPASWAMY
AGED 50 YEARS
RESIDING AT NO.3,
80 FEET ROAD, 8TH BLOCK,
KORAMANGALA
BANGALORE - 560065.
4. MRS PRATHIMA M K
W/O K C MURALIKRISHNA
AGED 38 YEARS
RESIDING AT NO.3,
80 FEET ROAD, 8TH BLOCK
KORAMANGALA
BANGALORE - 560065.
...RESPONDENTS
(BY SRI P.S.RAJAGOPAL S, ADV. FOR
SRI AVINASH P.C, ADV. FOR C/R1.)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE NOTICE DTD 10.07.2020 ISSUED BY
THE R-1 VIDE ANNX-F WHICH IS IN CONTRARY TO THE
TERMS AND CONDITION OF SALE NOTICE DTD
05.02.2020 VIDE ANNX-B ETC.
W.P.NO.8797/2020
3
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned Senior Counsel Sri.P.S.Rajagopal appearing on behalf of caveator/respondent No.1.
2. Brief facts of the case are that petitioner No.1 is a widow and a senior citizen, and petitioner No.2 is the daughter-in law of petitioner No.1. The petitioner No.1 is a guarantor to the loan advanced to respondent No.2. The respondent No.3 is the son-in law of the petitioner No.1 and has defaulted in repayment of loan. The respondent No.4 is the daughter of petitioner No.1 and wife of respondent No.3. The respondent No.3 and 4 who are the partners of respondent No.2 have defaulted in repayment of loan. The loan was secured by the properties of the respondent No.3 and 4 while the property of petitioner No.1 was given as a security W.P.NO.8797/2020 4 which is a residential property. That the value of the residential property, given as security by petitioner No.1 covers only a small portion of the loan.
3. That respondent No.1 initiated action under the Act and took physical possession of the property although it covers only 10% of the outstanding loan amount. The petitioner No.1 being a senior citizen is now living at the mercy of her relatives. The respondent No.1 had proceeded to sell the property of the petitioner No.1, who is a guarantor and mother in law of the respondent No.3, who is the borrower.
4. That petitioner No.1 had given a representation to respondent No.1 to proceed against the borrower's property first which was a commercial property and which may fetch sufficient amount to clear the entire dues and the petitioner had filed a writ petition seeking writ of mandamus seeking W.P.NO.8797/2020 5 direction to respondent No.1. The respondent No.1 proceeded to auction the property of the petitioner No.1 vide sale notice dated 05.02.2020.
5. The respondent No.1 in compliance of the orders of this Court had issued a notice to petitioner No.2 on 23rd June 2020, requiring petitioner No.2 to deposit a sum of 10% of the reserve price as Earnest Money Deposit and the reserve price was fixed at Rs.2,79,90,000/- (Rupees Two Crore Seventy Nine Lakhs Ninety thousand only), the same reserved price as was mentioned in the e-auction notice dated 05.02.2020. The petitioner No.2 had paid EMD of Rs.27,99,000/- (Rupees Twenty Seven Lakhs Ninety Nine thousand only) and petitioner No.2 had mentioned that, her offer is Rs.1,00,000/- (Rupees One Lakh only) more than the price offered by the auction purchaser as she was not aware of the bid amount of alleged successful bidder. W.P.NO.8797/2020 6
6. The instant writ petition was preceded by Writ Petition No.6187/2020 (GM-RES). The said Writ petition came to be disposed of on 17.03.2020 with the following order:
'6. The submission made by the learned counsel for the petitioner will be in the interest of not only the petitioner but, also of the first respondent-Company. There is no harm in the first respondent- Company considering the offer that will be made by the petitioner through her daughter-in-law. At the same time, an opportunity should also be given to the successful bidder to match the offer that is would be by the petitioner's daughter-in- law.
With these observations, the petition stands disposed of.'
7. Today, learned counsel for the petitioners submits that though petitioner No.2 is ready to deposit the balance amount in terms of the order noted supra, she is unable to do so in view of the interim order dated 22.07.2020.
W.P.NO.8797/20207
8. Per contra, learned Senior counsel appearing on behalf of caveator/respondent No.1 would submit that if petitioner No.2 is willing to deposit the balance amount today itself, respondent No.1 is willing to accept the balance amount of Rs.1,12,76,000/- and confirm the Sale in favour of petitioner No.2 and further prays that Authorized Officer/respondent No.1 may be permitted to refund the amount received from Mrs.Ashwini Sarvesha Reddy, who was declared the highest bidder.
9. In the light of the submissions made by learned Senior Counsel, this Court is of the opinion that the writ petition itself could be disposed of by placing on record the submissions made by learned Senior Counsel and the learned counsel for the petitioners.
10. In view of the above, the instant writ petition is disposed of with a direction to respondent W.P.NO.8797/2020 8 No.1 to receive the balance amount of Rs.1,12,76,000/- if the same is deposited on or before 03.00 p.m. by 04.08.2020.
11. In the event of such deposit, respondent No.1 - Company shall confirm the Sale in favour of petitioner No.2 and the Company is also permitted to refund the amount to the aforesaid Mrs.Ashwini Sarvesha Reddy.
12. It is needless to state that respondent No.1 - Company shall also expedite the consequential process of issuance of Sale Certificate and handover the possession, at any rate, within a period of one week from the date of receipt of the balance amount.
The petition stands ordered and disposed of accordingly.
Sd/-
JUDGE dn/-
CT-HR