Karnataka High Court
Sri. P Anjanappa vs The Authorized Officer, on 27 June, 2018
Bench: Chief Justice, Krishna S Dixit
W.P.No. 4512/2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2018
PRESENT
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
AND
HON'BLE MR.JUSTICE KRISHNA S. DIXIT
WRIT PETITION NO. 4512 OF 2018 (GM- DRT)
BETWEEN:
SRI. P. ANJANAPPA
S/O LATE H PUTTAPPA,
AGED ABOUT: 72 YEARS,
R/AT: NO.B-48/5,
PIPELINE ROAD, 'B' CROSS,
BAHUBALI NAGAR,
JALAHALLI,
BENGALURU - 560 013
(PETITIONER DO NOT CLAIM THE
BENEFIT OF SENIOR CITIZEN)
... PETITIONER
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. THE AUTHORIZED OFFICER,
STATE BANK OF PATIALA,
(STATE BANK OF INDIA)
J.C. ROAD BRANCH
BENGALURU - 560 002.
W.P.No. 4512/2018
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2. THE SENIOR MANAGER,
CANARA BANK,
GOKULA BRANCH,
MATHIKERE,
BENGALURU - 560 054.
3. SMT. THIMMAMMA
W/O LATE PUTTAPPA,
SINCE DEAD BY HER LRS
3a. ASHOK
S/O LATE H. PUTTAPPA,
MAJOR,
R/AT: NO.HL NO.224/8,
"ANNAPOORNA",
PIPELINE ROAD,
BAHUBALI NAGAR,
JALAHALLI , BENGALURU - 560 013.
4. SMT. T.S. JAYALAKSHMI
W/O T.C. SATHYANARAYANA,
AGED ABOUT: 50 YEARS,
R/AT: 77/8, 2ND MAIN ROAD,
VAYALIKAVAL EXTENSION,
BENGALURU - 560 003.
5. DR. VENKATESH PRASAD,
MAJOR,
R/AT: NO.104, VENKATADRI
III MAIN ROAD,
4TH CROSS, MAHALAKSHMI,
FURTHER EXTENSION,
BENGALURU - 560 086.
6. SRI V ARUNKUMAR,
S/O DR.VENKATESH PRASAD,
MAJOR,
R/AT: NO.104, VENKATADRI,
III MAIN ROAD,
4TH CROSS, MAHALAKSHMI
FURTHER EXTENSION,
BENGALURU - 560 086.
W.P.No. 4512/2018
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7. SRI C MUTHUKALAI,
CHARTERED ACCOUNTANT,
MAJOR,
R/AT: NO.1, BHANU
NURSING HOME ROAD,
BOMMANAHALLI,
BENGALURU - 560 068.
8. V GOPAL KRISHNA,
MAJOR,
R/AT: NO.B-52,
"SRIVARI NILAYA",
PIPELINE, B - CROSS,
BAHUBALINAGARA,
JALAHALLI,
BENGALURU - 560 013.
... RESPONDENTS
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 01.06.2015 IN RA (SA)
NO.227/2010 PASSED BY THE DEBT RECOVERY APPELLATE
TRIBUNAL, CHENNAI PRODUCED AT ANNEXURE - A AND
QUASH THE ORDER DATED 15.10.2007 IN ASA NO.217/2006
PASSED BY THE DEBT RECOVERY TRIBUNAL, BANGALORE
PRODUCED AT ANNEXURE - P AND THE SAID APPEAL BE
ALLOWED AS PRAYED FOR.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS THIS DAY, KRISHNA S.DIXIT.J.,
PRONOUNCED THE FOLLOWING:
W.P.No. 4512/2018
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ORDER
In this Writ Petition, petitioner has called in question the judgment and order dated 01.06.2015 made by the Debt Recovery Appellate Tribunal at Chennai, dismissing his appeal in R.A (SA)-227/2010 whereby, the judgment and order dated 15.10.2007 passed by DRT, Bangalore in ASA No.217/2006 are affirmed.
Brief facts of the case are :-
(a) One Sri.Puttappa died intestate on 25.10.1977 leaving his widow i.e., 3rd respondent herein, two sons namely the petitioner herein and one Sri.P. Ashok and sisters, who by virtue of a registered Partition Deed dated 13.03.1979 divided the properties left by the deceased. 'A' schedule property of the Partition Deed which is the subject matter of this dispute (hereafter called as Petition Property) was allegedly allotted to the 3rd respondent for life and after her demise, to the petitioner herein and his brother P. Ashok jointly as remaindermen.W.P.No. 4512/2018
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(b) In a suit in O.S.No.866/2000, filed by the petitioner against his mother the 3rd respondent herein, the City Civil Court, Bangalore, had granted an order of temporary injunction on 13.04.2000, which was made absolute on 11.02.2003, restraining the 3rd respondent from alienating the Petition Property.
(c) The said suit in O.S.No.866/2010 was dismissed on 31.01.2005. The matter was carried forward in R.F.A.No.225/2005 in which the 1st respondent's application for impleadment was rejected by this Court. Later, the matter was referred to Lok Adalat which granted a decree on 12.06.2006 in terms of settlement between the parties that the 3rd respondent should not alienate the Petition Property and that on the demise of 3rd respondent, the Petition Property would go to the petitioner herein and his brother P. Ashok jointly. The 3rd respondent passed away on 20.08.2014.
(d) During the pendency of the said suit, the 3rd respondent stood as one of the guarantors for the loan availed by one Mr.T.S. Ramachandra Rao from the 2nd W.P.No. 4512/2018 -6- respondent Canara Bank on 25.10.2000. Petition Property was mortgaged by the 3rd respondent by way of security for repayment of the loan. On the instigation of petitioner's brother P. Ashok, the 3rd respondent sold the Petition Property on 10.01.2001 to 4th respondent Smt.Jayalakshmi, who is sister of the principal borrower Mr.T.S. Ramachandra Rao.
(e) The 2nd respondent Canara Bank obtained an award dated 26.03.2003 for a sum of Rs.15,27,648/- with 14.25 % interest per annum and compounded quarterly penal interest at the rate of 2% from the Debt Recovery Tribunal in O.A.No.622/2001. The aforesaid Mr.T.S. Ramachandra Rao, the 3rd respondent and the 4th respondent herein were the respondents before the Debt Recovery Tribunal.
(f) To defeat this DRT Award, the 4th respondent sold the Petition Property on 19.06.2003 in favour of respondent Nos.5 and 6, who immediately mortgaged the same to the 1st respondent -State Bank of Patiala by way of security for the repayment of the loan. The 1st respondent namely the State W.P.No. 4512/2018 -7- Bank of Patiala initiated the proceedings under Section 13 of the Securitization Act which ultimately resulted into auction sale of the Petition Property on 23.11.2004.
(g) Aggrieved thereby, the petitioner herein filed I.R.No.827/2004 before the DRT, which came to be re-numbered as ASA No.217/2006. The Debt Recovery Tribunal vide judgment and order dated 15.10.2007 dismissed the appeal rejecting his contention that the 3rd respondent had only a life estate in the Petition Property, and the petitioner herein and his brother P. Ashok were having remainder therein. The appeal in R.A (SA)-227/2010 too came to be rejected by the Debt Recovery Appellate Tribunal at Chennai. Hence, the Writ Petition.
Having heard the learned counsel for the petitioner and having perused the papers, we decline to grant indulgence in writ jurisdiction.
The learned counsel for the petitioner contended that under the registered Partition Deed, the 3rd respondent was W.P.No. 4512/2018 -8- only a life estate holder of the Petition Property, and he & his brother P. Ashok were having remainder therein and therefore, the mortgage of the same did not bind the petitioner. Consequently, the sale/auction sale would not affect his interest in the Petition Property.
The learned counsel elaborated his submission by banking upon the order of Temporary Injunction granted in his O.S.No.866/2000 on 13.04.2000 restraining alienation of Petition Property; although the suit was dismissed on 31.01.2005, he submits, the RFA No.225/2005 came to be disposed of by this Court granting the decree in terms of the Joint Memo filed by the petitioner and the Respondent No.3 herein before the Lok Adalat on 12.06.2006; that being so, his interest in the property is intact and therefore, the impugned order should be set-aside, since he was neither a borrower nor a guarantor for the loan in question. W.P.No. 4512/2018 -9-
The learned counsel for the petitioner in support of his contentions relies upon the judgment of the Supreme Court in the case of Jagadish Singh V/s Heeralal and others reported in 2013 AIR (SCW-6378). Paras 22 and 23 of the said judgment read as under:
"22. Statutory interest is being created in favour of the secured creditor on the secured assets and when the secured creditor proposes to proceed against the secured assets, sub-section (4) of Section 13 envisages various measures to secure the borrower's debt. One of the measures provided by the statute is to take possession of secured assets of the borrowers, including the right to transfer by way of lease, assignment or realizing the secured assets. Any person aggrieved by any of the "measures"
referred to in sub-section (4) of Section 13 has got a statutory right of appeal to the DRT under Section 17. The opening portion of Section 34 clearly states that no civil court shall have jurisdiction to entertain any suit or proceeding "in respect of any matter" which a DRT or an Appellate Tribunal is empowered by or under the Securitisation Act to determine. The expression 'in respect of any matter' referred to in Section 34 would take in the "measures" provided under sub-section (4) of Section 13 of the Securitisation Act. Consequently if any aggrieved person has got any grievance against any "measures" taken by the borrower under sub-section (4) of Section 13, the remedy open to him is to approach the DRT or the Appellate Tribunal and not the civil court. Civil Court in such circumstances has no jurisdiction to entertain any suit or proceedings W.P.No. 4512/2018
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in respect of those matters which fall under sub- section (4) of Section 13 of the Securitisation Act because those matters fell within the jurisdiction of the DRT and the Appellate Tribunal. Further, Section 35 says, the Securitisation Act overrides other laws, if they are inconsistent with the provisions of that Act, which takes in Section 9 CPC as well.
23. We are of the view that the civil court jurisdiction is completely barred, so far as the "measure" taken by a secured creditor under sub- section (4) of Section 13 of the Securitisation Act, against which an aggrieved person has a right of appeal before the DRT or the Appellate Tribunal. to determine as to whether there has been any illegality in the "measures" taken. The bank, in the instant case, has proceeded only against secured assets of the borrowers on which no rights of Respondent Nos.6 to 8 have been crystalised, before creating security interest in respect of the secured assets. In such circumstances, we are of the view that the High Court was in error in holding that only civil court has jurisdiction to examine as to whether the "measures" taken by the secured creditor under sub-section (4) of Section 13 of the Securitisation Act were legal or not. In such circumstances, the appeal is allowed and the judgment of the High Court is set aside. There shall be no order as to costs." We have carefully considered the submission of the learned counsel and we have perused the papers. W.P.No. 4512/2018
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In the light of facts and circumstances of the case as emerging from the writ petition papers which include the impugned judgments and orders made by the DRT and the DRAT, the following features are noticeable:
Firstly, the records of the case at our hands do not contain a copy of the registered Partition Deed dated 30.03.1979, which according to the petitioner had granted life estate to the Respondent No.3 mother and the remainder to the petitioner and his brother P. Ashok. The records also do not contain the judgment and decree made by the Trial Court dismissing petitioner's suit in O.S.No.866/2000 either.
Petitioner and the Respondent No.3 are none other than son and the mother. The other brother P. Ashok is not made a party either to the suit or before the DRT or before the DRAT even though the allegation is that it is this brother who was trying to knock of the Petition Property.
The petitioner had every opportunity to protect his interest by impleading the Creditor-Banks in the Civil Suit or the Regular First Appeal . Otherwise also he could have been W.P.No. 4512/2018
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fair by not opposing the impleadment of the Creditor-Bank in the said R.F.A. No.225/2005. Further we also do not have the benefit of the order of this Court by which the application of the Creditor-Bank for impleadment came to be rejected. The Lok Adalat decree that came to be made in petitioner's RFA is founded on a Joint Memo dated 12.06.2008 to which, only the petitioner and the Respondent No.3 are the signatories. Nothing is mentioned about the bank loans and the mortgage of the Petition Property or about the interest of the other brother P. Ashok. The relevant portion of the said decree reads as under:
"This Regular First Appeal preferred against the judgment and Decree of the VI Additional Civil judge, Bangalore (CCH-11) passed in O.S.No.866/2000 on 31-01-2005 and these appeals having been referred tot the Lok Adalat by the Hon'ble High Court of Karnataka on 13-01-2006 coming on for settlement on 13- 01-2006 in the presence of Sri. G.Balakrishna Shastry, Advocate for Appellant and Sri. I. Ishwara Bhat, Advocate for respondent, and for the reasons stated in the Conciliation Order, W.P.No. 4512/2018
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while allowing the appeal in part, it is ordered and decreed that the suit schedule properties were divided between the Appellant-Plaintiff and respondent-defendant under a Registered Partition Deed dated 30.03.1979 registered in the Office of the Sub-Registrar, Bangalore North Taluk as Document No.5528/78-79 Volume 3121, pages 128-134. In the aforesaid partition, the schedule properties shown below were allotted to the share of the respondent with a specific agreement between the parties that the respondent shall not alienate the schedule property during her lifetime and that the schedule properties are to be divided equally between the appellant and his younger brother P.Ashok after the death of the respondent. In view of the clear understanding the agreement between the parties to the Partition Deed the valuable properties consisting of tenanted premises, buildings were allotted to the share of the respondent. Hence, the respondent agrees and consents not to alienate the schedule properties during her lifetime acknowledging the rights of the appellant-plaintiff and his younger brother P.Ashok to get the suit schedule properties W.P.No. 4512/2018
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divided between themselves after the demise of the respondent.
2. It is further ordered and decreed that the schedule properties shown below are to be enjoyed by the respondent-defendant during her lifetime.
3. It is further ordered and decreed that the decree for permanent injunction to be granted against the respondent restraining the respondent from alienating the suit schedule properties during her life time and the suit schedule properties be divided equally between the appellant and the respondent after the death of the respondent."
The petitioner who has invoked extraordinary jurisdiction vested by the Constitution in this Court, in the above circumstances has not approached this Court with clean hands. Even his stand before this court in RFA No.225/2005 does not appear to be fair for the Banks or his own younger brother P.Ashok about whom nothing is mentioned in the Joint Memo to which the Respondent No.3 is also a signatory.
W.P.No. 4512/2018
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Petitioner's reliance on the judgment of the Apex Court in Jagadish Singh's case is also not well founded. In the said judgment, the ratio laid down is that the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, excludes the jurisdiction of the Civil Courts over the matters that fall within the jurisdictional limits of the adjudicatory bodies functioning under the Act. Petitioner's grievances agitated before the DRT and DRAT are not rejected on the ground of lack of jurisdiction. In fact, his appeals are treated on merits. In the light of the law declared by the Apex Court in the said case, the Lok Adalat decree passed in petitioner's RFA also pales into insignificance.
The DRT and the DRAT have considered the contentions urged by the petitioner before them in the right perspective. This court exercising judicial review cannot act as an appellate body, the supervisory jurisdiction being restrictive, the focal point being the decision making process and not the decision itself. No error apparent on the face of W.P.No. 4512/2018
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the record warranting indulgence of this court having been pointed out, we do not find any merits in this case.
Consequently, the writ petition is rejected in limine.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Snb/