Dismissed

Venkatesh Vittalapur Son of Late Bheemanna v. the Chief Managaer and Authorised Officer

Karnataka HC13 Oct 2023WP/105227/2023

Case brief

AI extract

What is this about?

A default borrower filed a writ petition seeking modification of repayment installments and challenging a proposed auction under the SARFAESI Act. The Court rejected the plea to entertain the challenge, held the matter within the DRT's domain as per the Supreme Court, and dismissed the petition due to non-compliance with prior interim orders.

What did the court decide?

Petition dismissed; petitioner notified that they retain the right to approach the competent forum under SARFAESI Act.

Venkatesh Vittalapur Son of Late Bheemanna Vs the… — Banking and Recovery | Karnataka HC (2023)

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NC: 2023:KHC-D:12419 WP No. 105227 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF OCTOBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 105227 OF 2023 (GM-RES)

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BETWEEN:

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VENKATESH VITTALAPUR SON OF LATE BHEEMANNA, AGED ABOUT 52 YEARS, OCC: AGRICULTURIST, PAN NO: AESPV6582Q, MOB: 9448357774.

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SMT. NARASAMMA V. WIFE OF BHEEMANNA V, AGED ABOUT 65 YEARS,

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SMT. PAVANI V. WIFE OF VENKATESH V, AGED ABOUT 48 YEARS, PAN NO. BPIPP23378,

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.10.31 12:41:51 +0530

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NO.1 TO 3 ARE RESIDING AT LAKSHMINARAYANA NILAYA, NEAR BHAVANI ARTS COLLEGE, TILAK NAGAR, CANTONMENT, BALLARI-583101, ALSO AT VENKATESHWARA NILAYA, 4^TH AND 5^TH CROSS, AIRPORT ROAD, NEAR MITHIL CLINIC, VIDYANAGAR, BALLARI-583102.

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SRI NANDIPI RAMAKRISHNA SON OF NAGAPPA, AGED ABOUT 52 YEARS, OCC: AGRICULTURIST, PAN NO. AHHPR4491E, R/AT: D. NO. 546/16, NANDINILAYAM, K.C. COLONY, K.C. ROAD, BALLARI-583101.

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…PETITIONERS

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(BY SRI Y. KOTRESHA, ADVOCATE)

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AND:

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THE CHIEF MANAGAER AND AUTHORISED OFFICER, KARNATAKA BANK LIMITED,

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NC: 2023:KHC-D:12419 WP No. 105227 of 2023

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BALLARI BRANCH, ASSET RECOVERY MANAGEMENT BRANCH, PLOT NO. 50, 1^ST FLOOR, SRINAGAR COLONY, BANZARA HILLS ROAD, HYDRABAD-500073, TELANGANA STATE.

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…RESPONDENT

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(BY SRI C.V. ANGADI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI BY MODIFY OR REDUCE THE THREE ABNORMAL INSTALLMENTS OF 1) RS. 1,90,000/- HAS TO PAY ON OR BEFORE 17-08-2023, 2) RS. 3,79,000/- HAS TO PAY ON OR BEFORE 25-08-2023 AND 3) RS. 3,79,000/- HAS TO PAY ON OR BEFORE 0809-2023 VIDE ORDER DATED. 11-08-2023. ON THE FILE OF HON’ BLE DEBTS RECOVERY TRIBUNAL (DRT-1) BENGALURU IN S.A. NO. 359/2023 ON LA. NO. 1640/2023 DATED. 11-08-2023 VIDE ANNEXURE-A.

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

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ORDER

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Captioned petition is filed by the default borrower assailing the order passed by the Debt Recovery Tribunal (for short “the DRT”) granting interim order subject to deposit of Rs.9,48,000/-.

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The captioned petition is filed seeking modification of the installments provided by the DRT while granting interim order. This Court vide order dated

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NC: 2023:KHC-D:12419 WP No. 105227 of 2023

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13.09.2023 has further extended time to enable the petitioner to comply the order of the DRT. The order of this Court dated 13.09.2023 reads as under:

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“The petitioner is before this Court calling in question certain orders passed by the DRT. The DRT grants interim order of stay subject to certain conditions.

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The only indulgence that can be shown at the hands of this Court, at this juncture is extension of time owing to the pleaded difficulty of the petitioner.

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Therefore, the time that is stipulated in the order of the DRT dated 11.08.2023 shall stand extended up to 13.10.2023.

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List the matter in 13.10.2023 in the fresh matters list. It is made clear that in the event the petitioner does not comply with the orders of the DRT, as extended by this order, the interim protection granted by the DRT would stand vacated.”

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On examining the interim order dated 13.09.2023, this Court would find that the petitioner has virtually failed to comply the order of the DRT. The petitioner

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NC: 2023:KHC-D:12419 WP No. 105227 of 2023

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is found to be guilty of not complying the order of the DRT as well as the interim order granted by this Court. On examining these significant details I am of the view that the petitioner does not deserve any indulgence at the hands of this Court as he has failed to comply with the order passed by this Court on 13.09.2023.

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Be that as it may. The Division Bench of this Court, in W.A.No.1305/2021 disposed on 23.12.2021, while taking cognizance of judgment rendered by the Hon’ble Apex Court in the case of K.Virupaksha and another Vs. State of Karnataka¹ has held that the SARFAESI Act is complete code in itself which provides procedure to be followed by the secured creditor. The Division Bench further held that the SARFAESI Act also contemplates remedy for a borrower. The Hon’ble Apex Court in the case of K.Virupaksha (cited supra) taking note of the authority vested with DRT under sub-section (3) in Section 17 has held that the Legislature by including sub-section (3) in Section 17 has gone to the extent of vesting the DRT with authority to even set-aside a

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1 (2020) 4 SCC 440

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5 - NC: 2023:KHC-D:12419 WP No. 105227 of 2023

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transaction including sale and to restore possession to the borrower in appropriate cases. Therefore, the Apex Court has come down heavily on High Courts entertaining writ petitions questioning the orders passed under the provisions of SARFAESI Act which squarely fall within the domain of DRT. The principles laid down by the Apex Court in the judgment cited supra followed by the Division Bench, binds on this Court. The e-auction that is proposed to be held pursuant to orders passed under Section 13(2) and 13(4) of the SARFAESI Act also squarely fall within the domain of Section 17 of the SARFAESI Act. Therefore, the petitioner could not have knocked the doors of writ Courts assailing the proposed auction to be conducted by the respondent-bank. The writ petition is devoid of any merits and accordingly stands

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dismissed .

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