Dismissed

Smt Seema Kamath v. M/S Bank of Baroda

Karnataka HC3 Feb 2021WP/2233/2021

Case brief

AI extract

What is this about?

A magistrate permitted Bank of Baroda to take possession of secured assets, including a flat purchased by the petitioner. The High Court dismissed the writ petition, holding that the sale notice provided for 'as is where is' basis, making the apprehension of physical possession misconceived and the petition devoid of merits.

What did the court decide?

No costs. The writ petition is dismissed as it is deemed to be devoid of merits.

Smt Seema Kamath Vs M/S Bank of Baroda — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF FEBRUARY, 2021

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BEFORE

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THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR

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WRIT PETITION No.2233 OF 2021 (GM-RES)

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BETWEEN :

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SMT. SEEMA KAMATH D/O DR. UMESH MADHAV NAYAK AGED ABOUT 46 YEARS R/O NO.104, S.V.R. PINE RIDGE APARTMENT 1^ST FLOOR, 19^TH CROSS OPP. SBI, JNANA JYOTHI JAKKUR LAYOUT BENGALURU-560 064 …PETITIONER

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(BY SHRI. NARASIMHARAJU, ADVOCATE)

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AND :

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M/S. BANK OF BARODA FORMERLY M/S VIJAYA BANK LTD. RESIDENCY ROD BRANCH NO.2, JANARDHANA TOWER RESIDENCY ROAD BENGALURU-560 025 REPRESENTED BY ITS AUTHORISED SIGNATORY

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MRS. ROOPA

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M/S. SVR HOUSING A PARTNERSHIP FIRM HAVING OFFICE AT NO.21, 33^RD 'A' CROSS 11^TH MAIN, JAYANAGAR 4^TH 'T' BLOCK BENGALURU-560 041 BY SECRETARY

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MR. SURAY SRI HARSHA S/O SURAY SRI VENKATA RAMAIAH BDA SITE NO.50

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BBMP KHATHA NO.50 PID NO.67-1-50, 4^TH CROSS 17^TH 'A' MAIN, 5^TH BLOCK KORAMANGALA, WARD NO.67 BENGALURU-560 095

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ALSO AT NO.21, 33^RD 'A' CROSS 11^TH MAIN, JAYANAGAR 4^TH 'T' BLOCK BENGALURU-560 041

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MRS. SURAY SUJATHA W/O SURAY SRI. HARSHA BDA SITE NO.50 BBMP KHATHA NO.50 PID NO.67-1-50, 4^TH CROSS 17^TH 'A' MAIN, 5^TH BLOCK KORAMANGALA, WARD NO.67 BENGALURU-560 095

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ALSO AT NO.21, 33^RD 'A' CROSS 11^TH MAIN, JAYANAGAR 4^TH 'T' BLOCK BENGALURU-560 041 ... RESPONDENTS

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY CHIEF METROPOLITAN MAGISTRATE BENGALURU CITY IN CRML. MISC NO.3048/2019 DATED 30.08.2019 VIDE ANNEXURE-A IN SO FAR AS THE PETITIONERS SCHEDULE-B AND C PROPERTY IS CONCERNED.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard Shri Narasimharaju, learned advocate for the petitioner.

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Petitioner has challenged order dated 30.08.2019 in Crl.Misc.No.3048/2019 passed by the Chief Metropolitan Magistrate, Bengaluru, whereby the learned Magistrate has permitted Bank of Baroda to take over the physical possession of the secured assets from the respondents.

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Learned advocate for the petitioner submitted that respondent No.1 before the learned Magistrate is a Builder and Construction Company from whom the petitioner has purchased Flat No.104. According to him, what is mentioned in the petition is a vacant site. As on date, builder has put up the flats and sold it to several persons. He submitted that in the guise of executing the order passed by the learned Magistrate, Bank is attempting to take possession of the petitioner's flat.

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Records disclose that Bank of Baroda has brought several flats including petitioner's flat for sale as per Annexure-L. Sale is fixed on 25.02.2021. So far as the possession is concerned, it is

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clearly described in the sale notice that bank has only constructive possession and sale is in 'as is where is' and 'whatever is' basis.

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In the circumstance, petitioner's contentions that while executing the impugned order, Bank may take the physical possession of the flat in question is untenable. Even if such apprehension is assumed to be correct, admittedly, petitioner has not challenged Sale auction notice dated 12.01.2021 (Annexure-L). Any challenge to Annexure-L by any person aggrieved by that his/her remedy lies before the Debt Recovery Tribunal under Section 17 of SARFASI Act. Since order passed by the learned Magistrate is in the month of August, 2019 and Sale Notice is issued in the month of January, 2021 for sale of property in 'as is where is' and 'whatever is' basis, petitioner's apprehension is misconceived. Therefore, petition is devoid of merits and it is accordingly dismissed .

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No costs.

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Sd/JUDGE

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Smt Seema Kamath v. M/S Bank of Baroda

Case brief

What is this about?

What did the court decide?

Smt Seema Kamath v. M/S Bank of Baroda

Case brief

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What did the court decide?

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