Karnataka High Court
Mr M N Ashok vs Dhfl Vysya Housing Finance on 17 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.24505/2016(GM-DRT)
BETWEEN:
MR. M.N. ASHOK,
S/O SRI. MAILARA N. VENKATESHAPPA,
AGED ABOUT 36 YEARS,
R/O #37,MEHI ENCLAVE,
DODDABETTAHALLI,
VIDYARANYAPURA ,YELAHANKA,
BANGALORE - 560 097 ... PETITIONER
(BY SRI. SIDDANOORU VISHWANATHA, ADVOCATE)
AND:
1. DHFL VYSYA HOUSING FINANCE
(AN ASSOCIATE COMPANY OF
DHFL & A SUBSIDIARY OF WADHWAN
GLOBAL CAPITAL PVT.LTD.)
#284, VENKATADRI BUILDING,
BETWEEN 17TH & 18TH CROSS,
SAMPIGE ROAD, MALLESHWARAM,
BANGALORE - 560 003
REP BY ITS AUTHORISED OFFICER
2. MRS.MANJULA G.
W/O MR.M.N. ASHOK
MAJOR BY AGE,
R/O #37, MEHI ENCLAVE,
DODDABETTAHALLI,
VIDYARANYAPURA, YALAHANKA,
BANGALORE - 560 097 ... RESPONDENTS
(BY SRI. N KHETTY FOR R1
V/O. DTD. 15/06/16, NOTICE TO R2 IS DISPENSED WITH)
2
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE DEMAND
NOTICE DATED 13.02.2015 AS PER ANNEX-E AND THE POSSESSION
NOTICE DATED 16.04.2015 AT ANNEX-F, ISSUED BY THE R-1 BANK
HOLDING THE SAME AS ILLEGAL AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING - B
GROUP PHYSICAL HEARING/VIDEO CONFERENCING HEARING
(OPTIONAL), THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In the instant petition petitioner has prayed for the following reliefs:
a. Set aside the Demand Notice dated
13.02.2015 as per Annexure - E bearing
No.REF.DVHFL:7020/2015 and the possession notice dated 16.04.2015 bearing o.87/15 as per the Annexure-F, issued by the respondent No.1 Bank holding the same as illegal.
b. Set aside the final order passed by the Debt Recovery Tribunal, Bangalore on 23.03.2016 in S.A. No.438/2015 which is at Annexure-K and consequentially and all consequential measures taken under the provisions of the SARFAESI Act, 2002 by holding the same as illegal.
c. Issue a writ in the nature of Mandamus or any other appropriate writ, order or direction to the respondent No.1 Bank not to interfere with 3 the petitioner's peaceful possession and enjoyment of the petition schedule property.
2. Action of the 1st respondent- DHFL Vysya Housing Finance Limited and DRT order passed in S.A. No.438/2015 dated 23.3.2016 are under challenge.
3. Petitioner is stated to have joined 1st respondent - company on 17.11.2010 as a Marketing Executive. He had availed Housing Loan. While working as a Marketing Executive in the 1st respondent-company, he is stated to have misappropriated certain amount. Arising out of the aforesaid issues- 1st respondent Bank proceeded to initiate proceedings as is evident from the records. 1st Respondent-DHFL Vysya Housing Finance Limited is a private Body. Therefore, writ is not maintainable as held by this Court in the case of K.V. Panduranga Rao Vs. Karnataka Dairy Development Corporation, Bangalore and others reported in 1994 (1) KLJ 149 wherein Full Bench has held that private Body do not fall under the definition of Article 12 of the Constitution so as to entertain the present petition.
4. Next question is 'whether Debts Recovery Tribunal's order could be interfered under Writ jurisdiction or not?' 4 Petitioner has a statutory remedy of appeal before the Debt Recovery Appellate Tribunal under Section 18 of the SARFAESI Act, 2002. Thus, petitioner has not exhausted the statutory remedy of appeal.
5. In the following three decisions Apex Court has held that writ is not maintainable under the provisions of SERFAESI Act, 2002:
(i) UNITED BANK OF INDIA vs SATYAWATI TONDON AND OTHERS reported in (2010)8 SCC 110 (Para.42)
(ii) AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER Vs MATHEW K C reported in AIR 2018 SC 676 (Para.17)
(iii) ICICI BANK LTD. Etc. Etc. VS UMAKANTA MOHAPATRA ETC. ETC. decided in Civil Appeal No.10243-10250/2018 dated 05.10.2018.
6. Recently Assistant Commissioner (CT) LTU, Kakinada and ors. Vs. M/S Glaxo Smith Kline Consumer Health Care Ltd., in Civil Appeal No.2413/2020 (Arising out of SLP (C) No.12892/2019) reported in 2020 SCC Online SC 440 elaborately discussed and held that party must avail statutory remedy and writ petition is not the remedy. 5
7. The Apex Court in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others reported in AIR 2016 SC 3006 at paragraph 20 has held as under:
"20. Having stated thus, it is useful to refer to a passage form City and Industrial Development Corporation V/s.Dosu Aardeshir Bhiwandiwala and others {(2009) 1 SCC 168}, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:-
"The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved;
(b) The petition reveals all material facts;
(c) The petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) Person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) Ex facie barred by any laws of limitation;
(f) Grant of relief is against public policy or barred by any valid law; and host of other factors.6
(g) Cost and such other relief deems fit to grant under the circumstances of the case, in the interest of justice and equity.
(Emphasis supplied)
8. Learned counsel for the petitioner vehemently contended that 1st respondent - Bank are mixing up the issue relating to availing of loan and nonpayment and so also alleged misappropriation. On these issues, petitioner required to agitate before the jurisdictional Forum. When 1st respondent do not fall under the definition of Article 12 of the Constitution, even Article 227 of the Constitution cannot be invoked for the purpose of supervisory jurisdiction. In view of these facts and circumstances, petitioner has not made out a case.
9. Accordingly, writ petition is dismissed reserving liberty to the petitioner to approach appropriate Forum. Time spent in the present petition shall be taken into consideration for the purpose of condonation of delay in entertaining appeal/application, if any by the jurisdictional Forum.
Sd/-
JUDGE BS