Karnataka High Court
Smt Jayamala S vs Aptus Value Housing Finance India Ltd on 21 March, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:11637
WP No. 28087 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 28087 OF 2023 (GM-RES)
BETWEEN:
SMT. JAYAMALA S.,
AGED ABOUT 41 YEARS
W/O SHANKAR C.,
R/AT NO.14, 9TH CROSS
LAKSHMI LAYOUT, G.B.PALYA
HOSUR MAIN ROAD, HONGASANDRA
BENGALURU SOUTH, BENGALURU - 560 068.
...PETITIONER
(BY SRI. TUMBIGI PRABHUGOUDA BASAVANTARAYAGOUDA,
ADVOCATE)
AND:
1. APTUS VALUE HOUSING FINANCE INDIA LTD.,
NO.88, DOSHI TOWERS, 205
Digitally signed POONAMALLE HIGH ROAD
by NAGAVENI
KILPAUK, CHENNAI - 600 010.
Location: HIGH
COURT OF REP. BY ITS AUTHORISED OFFICER
KARNATAKA SENIOR MANAGER LEGAL.
2. APTUS VALUE HOUSING FINANCE INDIA LTD.,
156/4, OLD NO.156
27TH CROSS, 6TH BLOCK
JAYANAGAR BENGALURU - 560 082
REPRESENTED BY ITS BRANCH MANAGER.
...RESPONDENTS
(BY SRI. RAJIV R., ADVOCATE FOR C/R1)
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NC: 2024:KHC:11637
WP No. 28087 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING PUBLIC NOTICE FOR AUCTION SALE DTD
20.11.2023 BY THE R-1 PRODUCED VIDE ANNX-A BAD IN LAW;
TO ISSUE WRIT OF MANDAMUS TO THE RESPONDENTS TO
COME UP WITH THE PROPER CALCULATION IF ANY AMOUNT
DUE FROM THE PETITIONER AFTER TAKING INTO
CONSIDERATION OF ALL THE PAYMENT MADE BY THE
PETITIONER TOWARDS THE LOAN ACCOUNT TILL DATE.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking the following prayer:
"(i). To issue writ of certiorari by quashing public notice for auction sale dated 20.11.2023 by the 1st respondent produced vide ANNEXURE - A, bad in law and,
(ii) To issue writ of mandamus to the respondents to come up with the proper calculation, if any amount due from the petitioner after taking into consideration of the all the payments made by the petitioner towards the loan account till date and
(iii) To issue mandamus, directing the respondents to restore the possession of the schedule property to the petitioner forthwith; and
(iv) Pass such any other order / s as deems fit in the facts and circumstances of the case, in the interest of justice."
2. Heard Sri Tumbigi Prabhugouda Basavantarayagouda, learned counsel for petitioner and Sri Rajiv R., learned counsel for respondent No.1.
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NC: 2024:KHC:11637 WP No. 28087 of 2023
3. This Court to protect the interest of the petitioner granted an interim order on 20.12.2023. By then, the sale of the property had already taken place on 20.11.2023. It was four weeks after the sale, the interim order was granted, which was subject to the condition that the petitioner depositing 10% of the outstanding amount within two weeks and another 10% within next four weeks. Not even a rupee is paid. One opportunity was granted on 08.01.2024, by extending the interim order. Again, not even a rupee came about.
4. The respondent - finance on 10.01.2024 submitted that there is breach of the interim order and therefore, this Court was constrained to pass the following order:
"This Court on 20.12.2023 had passed the following order:
"ORDER Heard the learned counsel for petitioner. Issue emergent notice to the respondents. There shall be an interim order of stay of the auction sale notice dated 20.11.2023, issued by respondent No.1, till the next date of hearing, only in the event, the auction proceedings have not taken place, subject to the condition that the petitioner would deposit 10% of the outstanding amount, within two weeks from today and another 10% in the next four weeks, thereafter and in the event auction has taken place, the petitioner shall comply with the aforesaid payment condition and the respondents - finance shall not issue sale certificate in favour of the auction purchaser.
-4- NC: 2024:KHC:11637 WP No. 28087 of 2023 List the matter on 08.01.2024, in the preliminary hearing."
Learned counsel appearing for the Bank would submit and the petitioner would admit that not a rupee has been paid pursuant to the order dated 20.12.2023.
Therefore, the interim order so granted on 20.12.2023 stands vacated for its breach, reserving liberty to the petitioner to seek its restoration on complete compliance with the interim order dated 20.12.2023."
Liberty was reserved to seek restoration of the interim order after making good the entire payment.
5. The matter is moved today on the score that the petitioner is ready and willing to pay the entire amount of sale that has happened of the property. Learned counsel for the petitioner submits that a demand draft is ready, which is dated 06.03.2024.
6. Admittedly, the sale had taken place on 20.12.2023, the interim order was granted on the same day and the vacation of the interim order was on 10.01.2024. The petitioner has purchased the demand draft only after two months of the vacation of the interim order on 06.03.2024. On account of the breach of the petitioner and vacation of the interim order, in the interregnum, the respondent - finance, -5- NC: 2024:KHC:11637 WP No. 28087 of 2023 which had already sold the property, has issued the sale certificate to the successful auction purchaser. No fault can be found with the action of the respondent - finance, as it is the breach of the interim order by the petitioner, which has led to issuance of a sale certificate.
7. In the light of the sale certificate being issued to the auction purchaser and further proceedings having gone on, it is for the petitioner to approach the Debts Recovery Tribunal seeking redressal of his grievance qua the sale that has already taken place.
8. Learned counsel for respondent - finance submits that the petitioner was before the Debts Recovery Tribunal in a challenge to the order under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and has failed.
9. Therefore, in the considered view of this Court following the judgment of the Apex Court rendered in the case of CELIR LLP v. BAFNA MOTORS (MUMBAI) PRIVATE LIMITED reported in 2023 SCC OnLine SC 1209, the petition at this juncture is not entertainable. Therefore, the following: -6-
NC: 2024:KHC:11637 WP No. 28087 of 2023 ORDER a. The writ petition is disposed. b. The petitioner is reserved liberty to approach the Debts Recovery Tribunal.
c. The Debts Recovery Tribunal shall consider the claim of the petitioner on its merit and while doing so, shall also consider the fact that the petitioner is ready and willing to clear the entire amount of sale. d. The Debts Recovery of Tribunal shall regulate its procedure, if the petitioner prefers an application. e. The respondent - finance shall place all the details of sale and the account of the petitioner, before the Debts Recovery Tribunal without fail. Ordered accordingly Sd/-
JUDGE NVJ List No.: 1 Sl No.: 10 CT:SS