Allowed

Sri. Mariyappa .C. v. Canara Bank

Karnataka HC3 Jul 2024WP/1354/2024

Case brief

AI extract

What is this about?

In a writ petition under Article 226 of the Constitution, the Karnataka High Court directed the respondent bank to refund Rs.75,20,750/- to the petitioner who participated in an E-auction but discovered the property was litigated and had a measurement discrepancy. The court allowed the petition and granted alternative relief.

What did the court decide?

Refund of the entire sum of Rs.75,20,750/- within four weeks of receipt of the order.

Sri. Mariyappa .C. Vs Canara Bank — Banking and Recovery | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:25158 WP No. 1354 of 2024

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF JULY, 2024 BEFORE

¶4

THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.1354 OF 2024 (GM-RES)

¶5

BETWEEN:

¶6

SRI. MARIYAPPA C., S/O SRI. CHINNAPPA, AGED ABOUT 72 YEARS, NO.107, JODI HUSKUR, NORTH VIRGONAGAR, BENGALURU – 560 049.

¶7

…PETITIONER

¶8

(BY SRI. LOKESH R, ADVOCATE)

¶9

AND:

¶10

Digitally signed by Vandana S Location: HIGH COURT OF KARNATAKA

¶11

CANARA BANK ASSET RECOVERY AND MANAGEMENT BRANCH (ARM BRANCH) CIRCLE OFFICE BUILDING BALAMATTA ROAD, MANGALURU – 575 001. REPTD. BY ITS CHIEF MANAGER / AUTHORIZED OFFICER

¶12

(BY SRI. VIGNESH S. SHETTY, ADVOCATE)

¶13

…RESPONDENT

¶14

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE REPLY BEARING REF.NO. ARM/MNG/F44/825/2023-24/JD DATED 09.01.2024 ISSUED BY THE RESPONDENT BANK VIDE ANNEXURE-E AND ETC.,

¶15

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

¶16

¶17

NC: 2024:KHC:25158 WP No. 1354 of 2024

¶18

ORDER

¶19

In this petition, petitioner seeks the following relief:

¶20

“(i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing the Reply bearing Ref.No.ARM/MNG/F44/825/2023-24/JD dated 09.01.2024 issued by the respondent bank vide Annexure ‘E’.

¶21

(ii) Issue a writ in the nature of mandamus directing the respondent bank to conduct Joint Survey and issue fresh Sale Confirmation Letter with request to the extent of land available and the amount payable thereto proportionately after clearing all the litigations apart from removing the encumbrances created over the property in question as per letter dated 08.01.2024 vide Annexure ‘D’;

¶22

(iii) Pass such other order/s as may deemed appropriate considering the facts and circumstances of the case, to meet the ends of justice and equity.”

¶23

Heard learned counsel for the petitioner and learned

¶24

counsel for the respondent and perused the material on record.

¶25

Learned counsel for the petitioner submitted that the

¶26

petitioner participated in the E-auction conducted on 27.12.2023 and deposited a sum of Rs.75,20,750/- with the respondent, who confirmed the auction sale. However, when the petitioner visited the schedule property to his shock and surprise he learnt and realized that the measurement of the property notified for auction was 20,862 Sq.Ft. whereas the physically available property at the spot was only 15,234.75 Sq.Ft. Under these circumstances,

¶27

3 - NC: 2024:KHC:25158 WP No. 1354 of 2024

¶28

petitioner addressed a letter dated 08.01.2024 to the respondent – bank notifying the issues in respect of the property in question, pursuant to which, the respondent – bank issued Reply, which is assailed in the present petition. Learned counsel for the petitioner submitted that the petitioner also learnt that the said property was involved in a litigation in O.S.No.270/2020 and as such, the petitioner got the present petition amended by seeking refund of the amount paid by him.

¶29

Learned counsel for the respondent submits that since the petitioner did not deposit the balance auction sale consideration, respondent was liable to forfeit the EMD paid by the petitioner in view of Rule 9(5) of the Security Interest (Enforcement) Rules, 2002. It is therefore submitted that there is no merit in the petition and the same is liable to be dismissed. It is also submitted that the petitioner took risk by purchasing the property on ‘as is where is basis’ and consequently, he was not entitled to seek refund of the amount.

¶30

A perusal of the material on record will indicate that

¶31

when the property was brought to sale, petitioner was not notified about the pendency of O.S.No.270/2020 in relation to the subject

¶32

4 - NC: 2024:KHC:25158 WP No. 1354 of 2024

¶33

property. Further, in the light of specific stance of the petitioner that he has no interest to proceed further in acquiring the subject property and seeks refund on the ground that the schedule property is a litigated property and there is discrepancy in the measurement and extent, I am of the considered opinion that the petitioner cannot be compelled to either purchase the schedule property nor the amount deposited by him be forfeited especially when the suit has been instituted much prior to the auction sale.

¶34

Under these circumstances, in the special / peculiar facts and circumstances of the instant case and without making this order a precedent, I deem it just and appropriate to grant alternative relief of refund in favour of the petitioner by directing the respondent – bank to refund the entire amount within a stipulated time frame.

¶35

7. In the result, I pass the following:

¶36

ORDER

¶37

(i) Petition is hereby allowed .

¶38

(ii) The respondent – bank is directed to refund the

¶39

entire sum of Rs.75,20,750/- back to the petitioner within a

¶40

5 - NC: 2024:KHC:25158 WP No. 1354 of 2024

¶41

period of four weeks from the date of receipt of a copy of this order.

¶42

(iii) It is made clear that the present order is passed in the peculiar / special facts and circumstances of the instant case and this order shall not be treated as a precedent nor shall the same carry any precedential value for any purpose whatsoever.

¶43

Sd/JUDGE

¶44

¶45

List No.: 1 Sl No.: 96

Sri. Mariyappa .C. v. Canara Bank

Case brief

What is this about?

What did the court decide?

Sri. Mariyappa .C. v. Canara Bank

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sri Atikoor Rahaman Vs the State of Karnataka

Sundaram Finance Limited Vs the Authorised Officer

Smt. H. S. Sharavathi Vs M/S. Canara Bank

Sri K R Diwakar Vs M/S Hdfc Bank Limited

Sri. Raghavendra Swamy Mutt Vs State of Karnataka

Mr Nikhil C Pandey Vs Omkara Assets Reconstruction Private Limited