Allowed

Smt Vijayalakshmi v. Sree Subramanyeswara Co. Operative Bank Ltd.

DRT12 Sept 2023SA/439/2023

Case brief

AI extract

What is this about?

The Tribunal disposed of an interim application seeking a stay on a sale notice. It disapproved the petitioners' conduct in using interlocutory applications in an unregistered main proceeding but directed the Registry to scrutinize the main application. The sale notice and formalities were allowed conditionally, subject to the Tribunal's further orders. The matter was remanded to the Registry for

What did the court decide?

The auction sale notice dated 11.08.2023 and the sale formalities including deposit of the sale price are permitted, subject to further orders from this Tribunal.

Smt Vijayalakshmi versus Sree Subramanyeswara Co. Operative… — Banking and Recovery | DRT (2023)

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IN THE DEBTS RECOVERY TRIBUNAL - I. KARNATAKA AT BENGALURLJ

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PRESENT: SRI IMTI AZ ALT

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PRESIDING OFFICER

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Dated the l2th day of September ,2023

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INTERLOCUTORY APPLICATION NO. 1883 OF 2023

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UNREGISTERED SECURTTTSATION APPLICATION^(USA) DY NO.²²⁰⁴ OF 2022

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Between

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1.	Vijayalakshmi, W/olateRKrishnappaand D/olateMSubbaiah, 4g2,19th Cross,3'dMainRoad, AgraharaLayout,Yalahanka, Bangalore, Karnataka-560064.
2.	SKrishnaMurthy, Sio lateMSubbaiah, 4g2,lgthCross,3'dMainRoad, AgraharaLayout,Yalahanka, Bangalore, Karnataka-560064.	.. ...Petitioners/applicants
And
l.	The authorisedofficer, SriSubramanyeswara Cooperative Bank^Limited, Rajatha Bhavana,No.106, R.VRoad,V.VPuram. Bangalore, Karnataka-560004.
2.	SriSubramanyeswara CooperativeBank Limited, havingbranch among other^placesat156:33, I'tMainRoad,MaruthiExtension, OppMalleshwaram RailwayStation, Sriramapuram, Bangalore, Karnataka-560021.
a	M/sLavyanaSilkFactory.No.492,^{l gth}Cross, 3'dMainRoad, AgraharaLayout,^Yelahanka, Bangalore, Kamataka-560064, representedby its Proprietor,SRamesh.
4.	SRamesh, S/o lateMSubbaiah, 4g2,19thCross,3'dMainRoad, Agr aharaLayout,Yalahanka, Bangalore, Karnataka-560064.

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IA No. 1883 of 2023 in USA Dy^No.220412022

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Venkatesh Prasad S, 154, llth Cross, Vyalikaval,

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Bangalore, Karnataka - 560003.

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Beby. qgz, tg'h Cross, 3'd Main Road, Agrahara Layout, Yalahanka, Bangalore, Karnataka - 560064. ... Respondents/defendants

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This Interlocutory Application having been heard on^{11 .09.2023in the presence} of Advocates M/s Hegde Prakash R and Ramachandra^{for the petitioners/applicants and} Advocate Shd T.S Krishnamurthy for respondents I and^{2ldefendants1 and 2, and} Advocate Shri Puttaraju for respondents 3 and^{4/defendants3 and 4, and respondents 5} and 6/defendants 5 and 6 being absent, and stood^{over to this day for consideration,the} Tribunal delivered the following:-

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ORDER

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IA 1883/2023 was filed on 07.09.2023 under 5.17(2) of^{the Securitisationand} Reconstruction of Financial Assets and^Enforcement of^{SecurityInterest, Act,2002(as} amended from time to time) - for short'the Act'^{rlw 5.22(2)(h)of the Recoveryof Debts} and Bankruptcy Act, 1993^(as amended from time to time)^{and R.l8 of the Debts} Recovery Tribunal (Procedure) Rules, 1993^(as amended^{from time} to^time) -^{for short} 'the Rules' - seeking an order to stay the further^proceedings of^{the auctionsalenotice} dated 11.08.2023. The petitioners are none other than the applicants in^the aforementioned USA.

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The case set out by the petitioners/applicants through the notary attested affidavit of the 2nd petitionerl2nd applicant^{accompanyingthe IA in brief is as follows:-} The aforesaid USA has been filed on 13.09.2022 under S.l7(l)^{of the Act challengingthe} notice dated 08.09.2022 issued by the 1't respondent/l't defendant addressed to^{the tenant} in the schedule immovable property calling upon him to handover the vacant^possession of the szrrne, failing which waming the^tenant to^{proceedingsfor taking physical}

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lA No. I 883 of 2023 in USA Dy No.2204l2022

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possession. Thereafter, respondents I and 2lDefendants I and 2 on 21.112022 took physical possession of the schedule immovable property pursuant to the order dated 24.03.2021 in Crl Misc No.631912019 passed by the ACMM, Bangalore. While the aforesaid USA is pending, respondents 1 and 2/defendants I and 2 published a notice of sale dated 11.08.2023 in the New Indian Express daily dated 12.08.2023 fixing the sale of the schedule immoveable property on 12.09.2023 at a reserve price of {34 lakhs. When the SA has not been decided, this proceeding will cause multiple legal proceedings and hence the IA.

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Respondents 5 and 6/defendants 5 and 6 did not appear in the main proceedings and thus remained absent.

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The only point arises for consideration is as to whether the petitioners/ applicants are entitled to the relief prayed for in the interim application?

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The Point:- Respondents 1 and 2ldefendants 1 and 2 did not file a counter but stoutly resisted the prayer in the arguments advanced by Ld counsel for them on the ground that the petitioners being a third party to the proceedings have no locus standi to seek the reliefprayed for.

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For the reasons stated in the affidavit and on hearing both sides, IA 188212023 was allowed in the proceedings on 11.09.2023 and thus the matter was advanced and this IA was taken up on 11.09.2023.

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The SA filed on 13.09.2022 has not yet been registered. In the meantime, the petitioners/applicants filed nine IAs (including the present ones) seeking different reliefs. Some of them are these. IA 313312022 fied on 22.11.2022 seeking to restore possession of the schedule immovable property, which was dismissed by this Tribunal vide order dated 13.01.2023. Again, lA 73512023 was filed on 10.04.2023 seeking a direction to respondents I and 2/defendants 1 and 2 to restore possession of the movables. Thereafter, lA 88612023 was filed on 26.04.2023 seeking appointment of

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lA No. 1883 of 2023 in USADyNo.2204/2022

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Advocate Commissioner for effecting the prayer sought for in IA No.73512023. This Tribunal vide order dated 23.05.2023 allowed the same and a warrant of commission was issued on 21.06.2023. The Advocate Commissioner submitted a final report on 07.07.2023 on successfully completing his assignment.

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8' A perusal of the proceeding sheet shor+'s that an order to maintain statusquo was ordered on 16.09.2022 trll next date of hearing, i.e up to 06.10.2022.It was recorded in the proceedings on 17.10.2022 that the prayer for extension of interim order would be considered after defendants I and 2 file their objections. In the meantime, defendants I and 2 in the proceedings on 04.01.2023 submitted that they took physical possession of the schedule immovable property. However, the interim order was extended vie proceedings dated 30.03.2023 till next date of hearing, i.e up to 12.04.2023. In the meantime, the petitioners/applicants came up with this IA.

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As stated above, the main proceedings have not yet been registered. Without getting the main application registered, the mode adopted by the petitioners/ applicants to obtain their relief at relevant time by way of interim applications filed in regular intervals in an unregistered main application is highly deprecated. When such interim applications were entertained by this Tribunal in the interest of justice, the petitioners/applicants shall not consider it at their right to hear an unregistered main application. The act of the petitioners/applicants in the present case is not only improper but requires gross condemnation also. Parties shall not be permitted to misuse or abuse the process of the Tribunal. It is for the applicants to cure the defects, if any, noted by the Registry within the stipulated time granted by it and to get it registered or to obtain an order of declining the same. When the petitioners/applicants are having an efficacious, statutory and direct remedy under R.5(5) of the Rules before this Tribunal, an alternative remedy by way of an interim application without exhausting the direct remedy to mitigate their grievance is not proper. Instead of relying on the misplaced sympathy, the

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IA No. 1883 of 2023 in USA Dy No.2204/2022

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petitioners/applicants ought to have been more serious and vigilant in prosecuting their case properly.

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However, in the above circumstances, it may be seen that there was no judicial restraint for respondents I and 2ldefendants I and 2 after 12.04.2023 to go further pursuant to the order dated 24.03.2021in an application under S.14 of the Act to enforce their security interest on the secured asset. The impugned notice was issued only on 11.08.2023. At any rate, the eventually would be subject to the outcome of the SA. In the above facts and circumstances of this case, this Tribunal does not find any reason to interfere with the measure taken by respondents I and2ldefendants I and2 in accordance with law, if any, which would be subject to scrutiny, especially in view of the conduct of the petitioners/applicants in conducting the case. Therefore, respondents I and, 2l defendants I and 2 are permitted to go ahead with notice of sale of immovable properties dated 11.08.2023 and published in the New Indian Express daily dated 12.08.2023 and complete the sale formalities including deposit of sale price in accordance with law. However, sale, if any, held issuance of sale certificate and delivery of the property shall be subject to further orders from this Tribunal only.

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1 1. Before parting with this order, this Tribunal would like to draw the attention of the Registry to the following:- The Registry on scrutiny, found the application as defective and vide order dated 15.09.2022 granted time up to29.09.2022 for compliance. But suddenly on 16.09.2022, without obtaining any compliance ftom the applicants, the file was placed before the Tribunal with the following order:

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"Place before the Hon'ble Presiding Officer in Diary Stage on 16.09.2022 for hearing on ffice objection as there is no statutory notice against which relief sought.;,

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Much belatedly, on 10.04.2023 the applicants filed a memo about compliance of the office objections. Clause (ii) to R.23 of the Rules empowers the Registry to decide all questions arising out of the scrutiny of the applications before they are registered. In the above circumstances, the unregistered securitisation application with

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IA No. f 883 of 2023 in USA Dy No.2204/2022

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Dy No.220412022 is placed before the Registry on 15.09.2023 to scrutinise the same and to act accordingly in terms of sub-rules (2) or (4) of R.5 of the Rules on or before 22.09.2023. The case shall be placed before the Tribunal, if found to be in order and registered within two weeks from the date of registration, if any. If a declined order is being issued, the same shall be issued latest by 22.09.2023 endorsing sub-rule (5) of R.5 of the Rules therein.

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In the result, IA No.188312023 is disposed of accordingly. No costs.

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[Dictated^{to my PA, transcribed by him, corrected} and^pronounced by me in the open Tribunal on tfils the l2'h day of September,2}23J \V.

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\ I^rMrlAZALr ] PRESIDING OFFICER

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IN THE^{DEBTS RECOVERYTRIBI-INAL- 1'} KARNATAKA^{AT BANGALORE}

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PRESENT:^{SRI IMTI AZ ALI} PRESIDING^OFFICER

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Dated the^{12th day of September} '2023

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INTERLOCUTORY^{APPLICATION NO'1883OF 2023} IN UNREGISTERED^{SECURITISATIONAPPLICATION} (usA) DY NO.2204^{oF 2022}

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Between

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Vijayalakshmi, W/o late R^{KrishnaPPa and} D/o late M^Subbaiah, 4g2, lgth^Cross, 3'd Main^Road, Agrahara^LaYout, Yalahanka, Bangalore, Karnataka -⁵⁶⁰⁰⁶⁴ Petitioners/aPPlicants and another.

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And

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The authorised^officer, Sri Subramanyeswara^{Cooperative BankLimited'} Rajatha^{Bhavana,No.l06, R'V Road, V'V Puram'} Bangalore,^Kamataka -⁵⁶⁰⁰⁰⁴ andfive others. ""'^{Respondents/Defendants}

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""'^{Respondents/Defendants}

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ORDER

Smt Vijayalakshmi v. Sree Subramanyeswara Co. Operative Bank Ltd.

Case brief

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Smt Vijayalakshmi v. Sree Subramanyeswara Co. Operative Bank Ltd.

Case brief

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