Dismissed

B. Ravishankar v. State of Karnataka

Karnataka HC15 Nov 2022WP/35914/2017

Case brief

AI extract

What is this about?

This writ petition challenged the attachment of the petitioners' agricultural and residential properties under the KPID Act due to alleged fraud by a third-party corporation. The Court held that the existence of a Special Court with alternative remedies barred High Court intervention on disputed questions of fact and dismissed the petition.

What did the court decide?

The writ petition is dismissed on the ground of availability of alternative remedy before the Special Court. The petitioner is granted liberty to approach the Special Court for redressal.

B. Ravishankar Vs State of Karnataka — Banking and Recovery | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE E.S. INDIRESH

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WRIT PETITION NO.35914 OF 2017 (GM-RES)

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BETWEEN:

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B. RAVISHANKAR S/O SHRI B. RADHA RAMMANAIAH, AGED ABOUT 35 YEARS,

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RADHA RAMMANAIAH S/O LATE B. SUBBAIAH, AGED ABOUT 57 YEARS,

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SMT. B. RADHA W/O. RADHA RAMANAIAH, AGED ABOUT 54 YEARS,

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ALL ARE RESIDING AT NO.97, 3^RD CROSS, DOLLARS COLONY, BTM LAYOUT, 1^ST STAGE, BENGALURU-560 088.

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…PETITIONERS

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(BY SRI. GAUTAM BHARADWAJ, ADVOCATE)

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Digitally signed by LAKSHMINARAYAN N

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Location: High Court of Karnataka

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AND:

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STATE OF KARNATAKA REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE.

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THE REVENUE DEPARTMENT SPECIAL CELL, GOVERNMENT OF KARNATAKA, REPRESENTED BY ITS UNDER SECRETARY.

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M/S. AGRIGOLD PROJECTS LIMITED A PUBLIC LIMITED COMPANY HAVING ITS CORPORATE OFFICE AT 6-3-680/A/B, THAKUR MANSION LANE, NEAR SOMAJIGUDA CIRCLE, PUNJAGUTTA, HYDERABAD-500 082, TELANGANA.

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KARURU VYSYA BANK JAYANAGAR BRANCH, NO.54, 12^TH MAIN, 3^RD BLOCK, JAYANAGAR, BENGALURU-560 011, REPRESENTED BY ITS BRANCH MANAGER.

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M/S. POOJA CRAFTED HOMES PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT HOUSE No.8-2-293/82/A PLOT No.388/A, ROAD No.22 JUBLEE HILLS, HYDERABAD-500 033. REPRESENTED BY ITS DIRECTOR SRI SHOWRI REDDY DUGGIMPUDI

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…RESPONDENTS

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(BY SMT. SHWETA KRISHNAPPA, AGA FOR R1 AND R2; SRI T. MOHANDAS RAO, ADVOCATE FOR R4; SRI S. SRIRANGA, SENIOR COUNSEL FOR SMT. SUMANA NAGANAND AND ASSOCIATES FOR R5; R3 SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED 22.06.2017 VIDE ANNEXURE-A UNDER SECTION 3(2) OF THE KARNATAKA PROTECTION OF INTEREST OF DEPOSITORS IN FINANCIAL ESTABLISHMENTS ACT, 2004, INSOFAR AS THE PETITIONERS

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PROPERTIES ARE CONCERNED, WHICH ARE STATED IN ANNEXURE-5 TO THE SAID NOTIFICATION; AND ETC.

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THIS PETITION COMING ON FOR DICTATING ORDERS THIS DAY THE COURT MADE THE FOLLOWING:

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O R D E R

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Petitioners in this writ petition have challenged the Notification dated 22^nd June, 2007 (Annexure-A) issued by the respondent No.1 under Section 3(2) of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (for short hereinafter referred to as the “KPID Act”).

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Relevant facts for adjudication of this writ petition are that the petitioner No.1 has purchased agriculture lands in various survey numbers for valuable consideration by way of six sale deeds dated 05^th August, 2005; 09^th August, 2005; and 15^th September, 2005 to an extent of 36.01 acres from various third parties and claims to be the absolute owner of the said properties. Petitioners 2 and 3 have purchased a residential property bearing No.97, 3^rd Cross, BTM I Stage, Dollars Colony, Bengaluru vide sale deed dated 27^th July, 2013, by raising loan from the respondent No.4-Bank. The residential property was mortgaged in favour of the respondent No.4-Bank and in this regard, respondent No.4-Bank has initiated proceedings under

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the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, hereinafter referred to as “SARFAESI Act”). It is further stated in the writ petition that the petitioner No.1 has entered into a Joint Development Agreement (for brevity hereinafter referred to as “JDA”) with the respondent No.3 (Agrigold Projects Limited) on 20^th October, 2012 in relation to the agriculture land to an extent of 18.34 acres. The Joint Development Agreement stipulates that the respondent No.3 was to develop the residential layout within a period of two years from the date of sanction/approval from the competent authorities. Petitioners and the respondent No.3 have resolved to have 60:40 share in the developed sites. It is further stated in the petition that there were certain allegations against the respondent No.3 and its sister concern with regard to irregularities and illegalities and as such, the respondent No.3 failed to obtain required sanctions from the competent authority and therefore, the Joint Development Agreement was not acted upon by the parties and in that view of the matter, the land remains with the petitioners. When things stood thus, respondents 1 and 2 attached the residential property of

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petitioners 2 and 3 on the ground that the respondent No.3Company had defrauded several depositors who had invested in the respondent No.3-Company, which led to filing of several criminal proceedings and proceedings before the other High Courts. In this regard, the petitioners have lodged complaint with the Madiwala Police Station, which came to be registered as Crime No.850 of 2015 against the respondent No.3Company and its Directors for having illegally trespassed into petitioners’ residential property. In the meanwhile, proceedings were initiated against the sister concern of the respondent No.3 in the State of Andhra Pradesh under the provisions of Andhra Pradesh Protection of Depositors of Financial Establishment Act, 1990. When things stood thus, an employee of the respondent No.3-Company lodged a complaint before the Jayanagar Police Station, which came to be registered as Crime No.241 of 2015 for the offences punishable under Sections 506 and 420 read with Section 34 of Indian Penal Code. The petitioners further contended that as the respondent No.3-Company having failed to comply with its obligation under JDA dated 20^th October, 2012, petitioners were constrained to issue legal Notice, seeking appointment of sole

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Arbitrator in terms of Clause 15 of the JDA, for which the respondent No.3-Company did not respond and as such, the petitioners filed CMP No.23 of 2016 before this Court. In the meanwhile, the respondent No.3-Company addressed letter to the petitioners and sought to withdraw from the JDA dated 20^th October, 2012 and decided to refund Rs.15.00 crore advanced as refundable security deposit on the ground that they failed to comply with the terms and conditions of the JDA. In the midst of this situation, the respondent-Government has issued Notification under Section 3(2) of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (Annexure-A) and sought to attach all the properties of the respondent No.3-Company, including the properties of the petitioners herein. Feeling aggrieved by the same, the petitioners have presented this writ petition.

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The respondent-State has filed statement of objection and additional statement of objection raising several grounds for dismissal of the writ petition. It is the specific defence of the respondent-State that Special Court has been constituted to enquire into the illegalities committed by the

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respondent No.3-Company herein and therefore, the petitioners

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have to be relegated to approach the said Special Court for redressal of their grievance and accordingly, sought for dismissal of the petition on the ground of maintainability.

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During the pendency of the writ petition, the petitioners had entered into a memorandum of understanding on 20^th January, 2021 with one M/s. Pooja Crafted Homes (Private) Limited to develop a residential layout in the property owned by the petitioners and as such, the said Developer filed impleading application in IA.II of 2022 stating that impleading applicant is desirous of depositing the requisite amount to enable the release of the property in question which is the subject matter of attachment by the respondent-State. The said application was allowed on 01^st September, 2022 and the impleading applicant was permitted to come on record as respondent No.5.

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I have heard Sri Gautham Bharadwaj, learned counsel appearing for petitioners; Smt. Shweta Krishnappa, learned Additional Government Advocate for respondent-State; Sri T. Mohandas Rao, learned Counsel appearing for respondent

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No.4; and Sri Sriranga, learned Senior Counsel, appearing for respondent No.5.

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Sri Gautham Bharadwaj, learned counsel appearing

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for the petitioners contended that there is no relationship between the petitioners and respondent No.3 herein. He further contended that though Joint Development Agreement dated 20^th October, 2012 was entered into between the petitioners and the respondent No.3, however, the third respondent has cancelled the Joint Development Agreement dated 20^th October, 2012 vide communication dated 20^th August, 2016 (Annexure-Q) and therefore, attaching the property belonging to the petitioners is non-est and without jurisdiction. He further contended that the petitioners are neither “Financial Establishment” nor have collected any “Deposit” under the provisions of the KPID Act. He also argued that the impugned proceedings initiated by the respondentState suffers from the “jurisdictional fact”. Emphasising on these aspects, Sri Gautham Bhardwaj contended that the respondent No.3-Company itself has defrauded the petitioners by not honouring the JDA dated 20^th October, 2012 and further,

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petitioners are eager to develop the lands in question and without prejudice to the contentions raised in this writ petition, the respondent No.5 had come forward to deposit Rs.16.00 crore before this Court to release the lands from the respondent-State and therefore, he contended that the impugned Notification produced at Annexure-A requires to be set aside in this petition. In this regard, he places reliance on the judgments of the Hon'ble Supreme Court in the case of CARONA LTD. v. PARVATHI SWAMINATHAN AND SONS reported in (2007)8 SCC 559; and in the case of ARUN KUMAR AND OTHERS v. UNION OF INDIA AND OTHERS reported in (2007)1 SCC 732.

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Per contra, Smt. Shweta Krishnappa, learned Additional Government Advocate, contended that Special Court has been constituted by the respondent-State as per Notification dated 22^nd June, 2006 to look into the grievance of the Depositors of respondent No.3-Company and therefore, she urged that the petitioners be directed to approach the Special Court for redressal of their grievance. She further contended that there are several criminal cases lodged against the

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Directors of respondent No.3-Company and thereafter, State Government has referred the matter to CID for investigation and all the criminal cases filed against the respondent No.3Company are transferred to the Principal District Judge, Udupi, which is the Special Court as per the KPID Act. It is the principal submission of the learned Additional Government Advocate that the respondent No.3-Company has invested the amount borrowed from various depositors and purchased the property with a mala fide intention to defraud the depositors and therefore, sought for dismissal of the writ petition. To buttress her submissions, Smt. Shweta Krishnappa, learned Additional Government Advocate relies upon the judgment of

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the Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA v. 63 MOONS TECHNOLOGIES LTD reported in 2022 SCC ONLINE SC 506.

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Sri Sriranga, learned Senior Counsel appearing on behalf of respondent No.5 contended that irrespective of the criminal cases launched against the Directors of the respondent No.3-Company, the respondent No.5 is interested to purchase the property from the petitioners and in this regard the

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respondent No.5 is ready to deposit Rs.16.00 crore before this

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Court, subject to release of the property attached. Learned Senior Counsel further contended that the arguments advanced by the learned Additional Government Advocate cannot be accepted for the reason that there is no charge, as envisaged under Section 100 of Transfer of Property Act in respect of the property in question and as such, he relied upon the judgment of Hon'ble Supreme Court in the case of DATTATREYA SHANKER MOTE AND OTHERS v. ANAND CHINTAMAN DATAR AND OTHERS reported in (1974)2 SCC 799.

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In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the averments made in the pleadings on record. It is not in dispute that petitioners claim to be owner in possession of the schedule property mentioned in Annexure-A to the writ petition having purchased the same from the respective vendors. Petitioners 2 and 3 are the owners of the residential property mentioned above. Petitioners have entered into Joint Development Agreement dated 20^th October, 2012 with respondent No.3-Company to develop the schedule property.

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However, for the reasons best known to them, the said JDA dated 20^th October, 2012 was not materialised and as such, by letter dated 20^th August, 2016 (Annexure-Q) respondent No.3Company agreed to cancel the registered JDA dated 20^th October, 2012. In the meanwhile, certain criminal cases have been launched against respondent No.3-Company and in this regard, the Government has passed Notification dated 22^nd June, 2017 (Annexure-R3) to initiate action as per the provisions of the KPID Act. It is the case of the respondentState that the respondent No.3-Company and other allied companies are involved in the fraudulent transaction with innocent persons and failed to return the amount to its depositors and as the depositors are scattered through out the State of Karnataka, a Special Court is constituted at Udupi to look into the grievance of the depositors. In the meanwhile, the respondent-Government has issued the impugned Notification dated 22^nd June, 2017 attaching not only the agricultural properties of the petitioners, but also the residential property mentioned in the impugned Notification. The respondent-State has raised preliminary objection relating to the maintainability of the petition stating that the writ petition

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is not maintainable questioning the Notification dated 22^nd June, 2017 as the competent authority/Special Court has been constituted under Section 5 of the Act, on 24^th June, 2017 and a Special Court has been set up to consider the grievance of the depositors against the respondent No.3-Company; and as the KPID Act being a special enactment prevailing over the General Laws, the petitioner be relegated to approach the Special Court for redressal of its grievance. In reply to the said submission of the learned Additional Government Advocate, Sri Gautam Bhardwaj, learned counsel appearing for the petitioners argued that the petitioners have challenged the jurisdictional aspect and therefore, only this Court is having jurisdiction and the Special Court is not empowered to adjudicate the legality of the jurisdictional aspects.

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Though the learned counsel appearing for the petitioner relied upon the judgments in the case of CORONA and in the case of ARUN KUMAR (supra), however, in order to answer the point of jurisdictional aspect raised by the learned counsel appearing for the petitioners, the scheme of the KPID Act has to be borne in mind. The object of KPID Act is to

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protect the interest of depositors in financial establishment. Competent authority under the Act is an authority appointed under Section 5 of the Act. Definition of “Deposit” in Section 2(2) is an inclusive definition and Section 2(3) provides for definition of “Depositor”. Section 2(4) provides for definition of “Financial Establishment”. Section 3 envisages for attachment of properties on default of return of deposits. It stipulates and empowers the Government/District Magistrate, to act suo motu or on receipt of any complaint relating to the fraudulent transaction referred to in the said Section. On careful examination of the language employed under Section 3 of the Act makes it clear that the Government/District Magistrate suo motu or on a complaint may cause investigation of a complaint or fraudulent transaction. After such investigation, the District Magistrate shall forward his report together with the complaint to the Government and if the Government is satisfied that any financial establishment, as defined under the Act, has failed in its obligation to the depositor or is acting detrimental to the interest of the depositor with an intention to defraud them or is not likely to return the deposits or make payment of interest to the depositors, may issue an order of attaching the money or

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property believed to be that of the financial institution. According to the respondent-State, by virtue of JDA dated 20^th October, 2012, the financial institution i.e. the respondent No.3-Company, had acquired the properties of the petitioners and therefore, the respondent-State invoked the provisions contemplated under Section 3(2) of the KPID Act by issuing the attachment notice dated 22^nd June, 2017. It is also not in dispute that the respondent No.3-Company paid a sum of Rs.16.00 crore to the petitioners as an advance security deposit while entering into JDA with the petitioner. However, the competent authority believe that, in terms of the provisions of the Act, the public had invested Rs.1639,63,45,230/- and nine cases were registered in the State of Karnataka and CID probe has been ordered by both the State of Karnataka and the State of Andhra Pradesh against the respondent No.3-Company and in furtherance of the same, the Special Court has been constituted as per Notification dated 22^nd June, 2017 to protect the interest of the depositors. Though the learned counsel appearing for the petitioners raised contention regarding the jurisdictional aspect, however, it is open for the petitioner to urge the same ground before the Special Court constituted by

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the respondent-State as per Section 10 of the KPID Act. The scheme of the Act enables the depositors to take action against such fraudulent transactions by the financial establishment and therefore, the ground of jurisdiction aspect, could be urged before the Special Court and in that view of the matter, the judgments referred to by the learned counsel appearing for the petitioners cannot be accepted. That apart, the transaction between the petitioners and respondent No.3-Company in terms of the JDA dated 20^th October, 2012; the rights and liabilities of the contracting parties therein, are all the questions of fact. Whether the depositors amount has been invested by the respondent No.3-Company herein to enter into JDA with petitioners herein, is also a question of fact and cannot be gone into in a writ petition under Article 226 of the Constitution of India and therefore, I find force in the submission made by the learned Additional Government Advocate. It is also to be noted that as argued by the learned counsel appearing for the petitioners, the total extent of land the petitioners is to an extent of 41.23 acres and the subject land in the JDA dated 20^th October, 2012 is to an extent of 18.34 acres of Mayaganahalli village; there are civil disputes that arose

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between the petitioners and respondent No.3-Company; Criminal cases have been launched against each other in Crime No.850 of 2015 of Madiwala Police Station, Bengaluru for the offences punishable under Section 149, 448 and 506B of Indian

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Penal Code and in that view of the matter, taking into consideration the contents of the impugned order dated 22^nd June, 2017 (Annexure-A), I am of the view that these are all the disputed questions of fact which requires to be agitated and adjudicated by the Special Court constituted under Section 10 of the KPID Act and therefore, writ petition deserves to be dismissed on the ground of availability of alternative remedy. In the case of 63 MOONS TECHNOLOGIES LTD. (supra), the Hon'ble Supreme Court gone into the provisions under the Maharashtra Protection of Interest of Depositors (Financial Establishment) Act, 1999, in detail and has relegated the parties to approach the Special Court, as there is efficacious and alternative remedy provided under the said Act. The Hon'ble Supreme Court in the case of PUNJAB NATIONAL BANK v. O.C. KRISHNAN reported in (2001)6 SCC 569, in the course of judgment at paragraph 6, has observed thus:

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“ 6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial instructions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal meachanism provided by the Act.”

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In the case of CITY AND INDUSTRIAL DEVELOPMENT CORPORATION v. DOSU AARDESHIR BHIWANDIWALA reported in (2009)1 SCC 168, the Hon'ble Supreme Court has highlighted the parameters which are required to be kept in view by the court while exercising jurisdiction under Article 226 of the Constitution, wherein at paragraphs 29 and 30, it is held thus:

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“ 29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution.

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30. The court while exercising its jurisdiction under Article 226 is duty bound to consider whether :

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(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

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(b) petition reveals all material facts;

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(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;

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(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

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(e) ex facie barred by any laws of Limitation;

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(f) grant of relief is against public policy or barred by any valid law; and host of other factors.

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The dictum of the Hon'ble Supreme Court was

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reiterated by Hon'ble Supreme Court in the case of STATE OF MAHARASHTRA v. GREATSHIP (INDIA) LIMITED reported in AIR 2022 SC 4408 wherein it was observed that, “ This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions. ” The provisions of the Maharashtra Protection of Interest of Depositors (Financial Establishment) Act is pari materia with the provisions contained under the KPID Act. In view of the aforementioned aspects, I am of the view that the writ petition is not maintainable and same is disposed of with liberty to the petitioner to approach the competent Special Court for redressal of its grievance in view of the arrangement entered into between the petitioner and the respondent No.5, who is willing to purchase the property involved in this petition by depositing the admitted dues to an extent of Rs.16.00 crore. Section 12 of the Act provides for powers of Special Court regarding attachment. The language employed in Section 12(3) of the Act demonstrates that, any person claiming an

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interest in the property attached, can approach the Special Court at any time before an order is passed under sub-section (4) of sub-section (6) of Section 12 of the KPID Act. The KPID Act is a self-contained Act, which provides for protection of the innocent depositors and the rules made thereunder, particularly Rule 6 of the Karnataka Protection of Interest of Depositors etc. Rules, 2006, empowering the competent authority/special Court to nullify such transfer of property involving the act of financial establishment. In the result, writ petition fails and accordingly dismissed.

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SD/JUDGE

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LNN

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List No.: 1 Sl No.: 74

B. Ravishankar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

B. Ravishankar v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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