Disposed

Sri K C S Nair v. Fedbank Financial Services Limited

Karnataka HC23 Jan 2024WP/532/2024

Case brief

AI extract

What is this about?

Senior citizen petitioners filed a writ petition challenging a possession notice issued by the respondent bank under SARFAESI. The court noted petitioners were not borrowers and dismissed direct judicial direction to the bank to exclude their property, advising them to submit a representation to the bank instead of perpetuating proceedings.

What did the court decide?

None. Respondent bank directed not to precipitate matter until representation by petitioners is considered.

Sri K C S Nair Vs Fedbank Financial Services Limited — Banking and Recovery | Karnataka HC (2024)

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NC: 2024:KHC:3070 WP No. 532 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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WRIT PETITION NO. 532 OF 2024 (GM-RES)

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BETWEEN:

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SRI K C S NAIR S/O SRI. C.S. NAIR AGED ABOUT 76 YEARS R/AT NO.101, 1^ST FLOOR BSR KOORLA RESIDENCY KOGILU VILLAGE YALAHANKA HOBI, BANGALORE - 560 064

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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SMT. AMMINI K. NAIR W/O SRI. K.C.S NAIR AGED ABOUT 73 YEAWRS R/AT NO. 101, 1^ST FLOOR BSR KOORLA RESIDENCY KOGILU VILLAGE YALAHANKA HOBLI, BANGALORE NORTH BENGALURU - 560 064 …PETITIONERS

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(BY SRI. NAGENDRA KUMAR K., ADVOCATE)

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AND:

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FEDBANK FINANCIAL SERVICES LIMITED CIN NO.U65910KL19959PLC008910 CORPORATE OFFICE AT KANAKIA WALL STREET A-WING, 5^TH FLOOR, UNIT NO.511 AND 512 ANDHERI KURLA ROAD, CHAKAFA, ANDHERI (EAST), MUMBAI - 400 093 REPRESENTED BYITS BRANCH MANAGER AND ALSO REG BRANCH OFFICE

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NC: 2024:KHC:3070 WP No. 532 of 2024

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FEDBANK FINANCIAL SERVICES LIMITED FEDERAL TOWERS, AUVA ERNAKULAM KERALA - 683 101

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…RESPONDENT

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(BY SRI. NARAYANA SWAMY D., ADVOCATE)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED POSSESSION NOTICE DATED 24/07/2020, ISSUED AGAINST THE SCHEDULE PROPERTY OF THE PETITIONER IN SL. NO.03 IN UNIT NO.101 IS CONCERN, ISSUED BY THE RESPONDENT BANK, AS PER ANNEXURE-H; DIRECTING THE RESPONDENT BANK TO EXCLUDE THE SCHEDULE PROPERTY OF THE PETITIONER IN THE IMPUGNED POSSESSION NOTICE DATED 24/07/2020 AND DIRECT TO STOP FURTHER PROCEEDINGS IN PURSUANCE OF THE IMPUGNED POSSESSION NOTICE DATED 24/07/2020, AS PER ANNEXURE-H; DIRECTING THE RESPONDENT BANK TO SELL THE 11 FLATS WORTH OF RS. 8.8 CRORES WHICH WAS ALREADY BEEN IN PHYSICAL POSSESSION IN THE PAST 10 MONTHS WITH THE RESPONDENT BANK TO RECOVER THE OUTSTANDING DUES AMOUNT OF RS. 4.58 CRORES AND DIRECT THE RESPONDENT BANK TO PAY COST TO THE PETITIONER. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking quashment of a possession notice dated 24.07.2020 and seeks a direction directing the Bank to sell other 11 flats and leave the flat of the petitioner alone.

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Heard the learned counsel Sri.Nagendra Kumar K., appearing for the petitioners and the learned counsel Sri.Narayana Swamy D., appearing for the respondent.

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NC: 2024:KHC:3070 WP No. 532 of 2024

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The petitioner is not the borrower. The borrower is developer of the apartment complex in which the petitioners purchases a house on 07.12.2017. By then, the borrower had mortgaged all the flats in the apartment complex to respondent No.1 - Bank prior to 07.12.2017. Therefore, the first charge over the properties is with the first respondent - Bank. The loan having become sticky, the Bank initiates proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as 'SARFAESI Act' for short) and secures an order at the hands of the learned Magistrate under Section 14 of the SARFAESI Act. This very petitioner had approached this Court in W.P.No.6410/2021 challenging the very same possession order passed by the learned Magistrate. This Court disposed the writ petition by an order dated 23.04.2021 by observing as follows:

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" Petitioners have challenged order dated 16.03.2021 in Crl.Misc.No.5821/2020 passed by the XXXVII Additional Chief Metropolitan Magistrate, Bengaluru, under Section 14 of the SARFAESI Act.

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2. It is settled that a person aggrieved by the proceedings initiated under Section 13(2) of the SARFAESI Act has an alternative and efficacious remedy before the Debts Recovery Tribunal ("DRT" for

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NC: 2024:KHC:3070 WP No. 532 of 2024

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short). (See United Bank of Inida Vs. Satyawati Tandon and others¹ ).

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3. In the circumstances, this petition does not merit consideration and it is accordingly dismissed reserving liberty to the petitioners to seek appropriate relief under Section 17 of the SARFAESI Act.

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No costs."

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The position even as on today remains the same. The petitioners have filed the second petition i.e., the subject petition for the very same relief. The reason projected by the petitioners is that the petitioners are senior citizens and there are other flats, which the Bank can take possession of and not the petitioners.

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The submission does not merit acceptance for passage of any judicial order directing the Bank to take possession of a particular property. The petitioners are however reserved liberty to submit a representation on their grievances to the Bank, within one week from today. In the event a representation is submitted, the Bank shall consider the same, within one week thereafter and pass appropriate orders.

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1 2010 (8) SCC 110

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NC: 2024:KHC:3070 WP No. 532 of 2024

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