Dr. Pratap Kumar Sahani Vs Chief Authorized Officers Union Bank

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1 - NC: 2025:KHC:34178 WP No. 11742 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1^ST DAY OF SEPTEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE R. NATARAJ WRIT PETITION NO. 11742 OF 2022 (GM-RES)

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BETWEEN:

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DR. PRATAP KUMAR SAHANI AGED ABOUT 34 YEARS, S/O. MR. SAHANI RESIDING AT NO.P.S. POLY CLINIC NO.50/1/1, GROUND FLOOR, DEV TOWERS, 2^ND CROSS, MANUVAN, VIJAYANAGARA, BENGALURU -560040.

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…PETITIONER

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(BY SRI. ABHINAV R., ADVOCATE FOR SRI. MANOHAR B.K., ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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CHIEF AUTHORIZED OFFICERS UNION BANK, MALLESHWARAM BRANCH, SOUTH END ROAD, MILL CORNER, SHESHADRIPURAM POST, MALLESHWARAM BANGALORE-560020 REGISTERED UNDER COMPANIES ACT, 1956

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THE STATE OF KARNATAKA REP BY VIJAYANAGARA P.S. SERVICE ROAD, SBI STAFF COLONY, HOSAHALLI EXTENSION, STAGE-I, VIJAYANAGAR, BENGALURU -560041

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SRI. DEVARAJ S/O MR. SAHANI RESIDING AT P.S. POLY CLINIC NO.50/1/1, GROUND FLOOR, DEV TOWERS,

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2^ND CROSS, MANUVAN VIJAYANAGARA BENGALURU -560040

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SMT. GAYATRI DEVI NO.50/1/1, GROUND FLOOR, DEV TOWERS, 2^ND CROSS, MANUVAN, VIJAYANAGARA BENGALURU -560040

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MR. BYSANI RAJESH S/O. SRI BYSANI KRISHNA MOORTHY AGED MAJOR RESIDING AT NO.224, GROUND FLOOR 3^RD AVENUE, 6^TH MAIN, TEACHERS COLONY KORAMANGALA 1^ST BLOCK BENGALURU SOUTH BENGALURU -560034

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SMT. ATHULURI UMA KUMARI W/O SRI. BYSANI RAJESH AGED MAJOR RESIDING AT NO.224, GROUND FLOOR 3^RD AVENUE, 6^TH MAIN, TEACHERS COLONY KORAMANGALA 1^ST BLOCK, BENGALURU SOUTH, BENGALURU -560034

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…RESPONDENTS (BY SRI. V.B. RAVISHANKAR, ADVOCATE FOR RESPONDENT NO.1; SRI. CHETHAN KUMAR K., ADVOCATE FOR RESPONDENT NOS.5 AND 6;

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SRI. SRINIVAS KUMAR M., HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.2;

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NOTICE SERVED ON RESPONDENT NOS.3 AND 4)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE NOTICE DATED 02.06.2022 ISSUED BY RESPONDENT NO.1 INFORMING THE PETITIONER ABOUT AUCTION SALE VIDE ANNEXURE-D AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2025:KHC:34178 WP No. 11742 of 2022

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has challenged a notice dated 02.06.2022 issued by the respondent No.1 proposing to take physical possession of the secured asset pursuant to an order dated 21.04.2017 passed by the XXIV Additional Chief Metropolitan Magistrate, Bangalore in Crl. Misc.No.2261/2017. He has also challenged an order passed by the XXIV Additional Chief Metropolitan Magistrate, Bangalore dated 29.04.2019 in Crl.Misc.2261/2017 under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( for short 'SARFAESI Act'). He has also sought for a direction to the respondent No.1 not to evict him during the pendency of this proceedings and to allow him to participate in any auction, if conducted by the respondents.

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(i) The petitioner claims that he is a doctor by

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profession and had taken on lease a portion of the property bearing No.50/1/1 from the respondent No.3 in terms of a lease agreement dated 01.09.2007. He claims that he paid a sum of Rs.1,50,000/- as advance and had agreed to pay

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monthly rent of Rs.16,000/- per month. He claims that he had paid the rent from 01.09.2007 till 24.12.2018. He claims that the rent was subsequently increased to Rs.24,000/- per month.

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(ii) The petitioner claims that in order to renovate the premises, he had invested a sum of Rs.80,00,000/- for installation of various equipments. He claims that he has promptly paid the rent to the respondent No.3 and his tenancy is not terminated. He claims that to his shock and surprise, the officers of respondent No.1 entered the premises and informed him that the respondent No.3 and his wife-respondent No.4 had availed a loan but failed to clear it and that respondent No.1 had taken possession of the property. The petitioner filed an application before the Debt Recovery Tribunal (for short 'DRT'), which he withdrew. He contends that the respondent No.1 had filed a petition under Section 14 of SARFAESI Act in Crl. Misc. No.2261/2017 without disclosing the lease agreement between the petitioner and the respondent No.3. The petitioner, in order to protect his possession, had filed O.S.No.1737/2019, where the Court had passed an order directing the parties to maintain status-quo . The petitioner, being aggrieved by issuance of a notice dated 02.06.2022 by the respondent No.1

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that it would take over possession of the premises pursuant to the order passed in Crl.Misc.No.2261/2017, is before this Court challenging the notice as well as the order passed in Crl.Misc.No.2261/2017.

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The learned counsel for the petitioner submitted that the petitioner is a tenant in the premises from the year 2007 and therefore, it was incumbent upon the respondent No.1 to have mentioned in the proceedings under Section 14 of SARFAESI Act that the premises is not vacant. He contends that the respondent No.1 did not file the prescribed affidavit in the prescribed form and therefore, the impugned order passed in Crl.Misc.No.2261/2017 is liable to be quashed. He submits that in view of the above, the consequent notice is also liable to be quashed.

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Per contra, the learned counsel for the respondent No.1 submitted that this petition is not maintainable in view of an efficacious remedy before the DRT. He contends that the word 'person' in Section 17 of SARFAESI Act not only includes a borrower but even a person claiming to be a tenant in the

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secured asset. He, therefore, contends this writ petition is not maintainable.

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The learned Additional Government Advocate

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supported the contentions of respondent No.1.

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I have considered the submissions of the learned counsel for the petitioner as well as the learned High Court Government Pleader for respondent No.2 and learned counsel counsel for the respondent No.1.

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The petitioner has challenged an order passed under Section 14 of SARFAESI Act and the consequent notice to take over possession of the secured asset. The petitioner claims to be a tenant in possession of the secured asset and that he had paid a sum of Rs.1,50,000/- to the respondent No.3. It appears that the respondent No.3 had created a security interest in favour of the respondent No.1 much prior to the lease in favour of the petitioner. Therefore, the petitioner's right, if any, is always subject to the right of the respondent No.1 to proceed against the secured asset. As rightly contended by the learned counsel for the respondent No.1, the petitioner has availed the remedy of a challenge under Section 17 of the

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SARFAESI Act in I.R.No.3254/2018 to recover possession of the property, which he withdrew. He has, thereafter, filed a suit in O.S.No.298/2019 and the Trial Court entertained an application filed under Order VII Rule 11(d) read with Section 151 of Civil Procedure Code and dismissed the suit as barred under Section 34 of SARFAESI Act. Therefore, the petitioner cannot approach this Court challenging the order passed in Crl.Misc.No.2261/2017 as he had not availed the remedy in I.R.No.3254/2018.

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In this regard, it is profitable to refer to the judgment of a Co-ordinate Bench of this Court in the case of Smt. Vimala Bhushan Vs. The Authorised officer, YES bank Lmitied, Mumbai and others - ILR 2019 KAR 2520 .

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Nonetheless, if the petitioner wants to challenge the order passed in Crl.Misc.No.2261/2017, he may do so in accordance with law before the DRT.

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If a challenge is raised by the petitioner before the Tribunal, then the time consumed in pursuing this petition shall be deducted while calculating the limitation. If the petitioner is in possession, his possession shall not be disturbed for a period

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of 30 days within which time, he shall file an appropriate petition before the Tribunal and obtain interim orders. It is made clear that this protection shall be in force for a period of 30 days and not beyond. It is also made clear that this Court has not expressed any opinion on the merits of the case of the petitioner and any observation made herein shall not come in the way of the petitioner challenging the order passed under Section 14 of SARFAESI Act.

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