Srinivas v Vs Vijaya Bank

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NC: 2025:KHC:37436 WP No. 202 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF SEPTEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE R. NATARAJ WRIT PETITION NO. 202 OF 2017 (GM-RES)

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BETWEEN:

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SRINIVAS V S/O VENKATRAM, AGED ABOUT 43 YEARS, R.AT NO.293, I BLOCK, JNANABHARATHI LAYOUT, VALAGERAHALLI, KENGERI SATELLITE TOWN, BENGALURU-560 060. …PETITIONER (BY SRI. A G BALLOLLI, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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VIJAYA BANK ASSET RECOVERY MANAGEMENT BRANCH, NO.19, SHRUTHA COMPLEX, PRIMROSE ROAD, BENGALURU-560 025 BY ITS CHIEF MANAGER.

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THE AUTHORISED OFFICER, ASSET RECOVERY MANAGEMENT BRANCH, NO.19, SHRUTHA COMPLEX, PRIMOSE ROAD, BENGALURU-560 025.

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MADHUSUDHAN H.S. PROPRIETOR, SANKRITHI ENTERPRISES, SY.NO.120, KODIPALYA, RAMOHALLI POST, KENGERI HOBLI,

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NC: 2025:KHC:37436 WP No. 202 of 2017

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BENGALUR SOUTH-560 060.

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…RESPONDENTS

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(BY SMT. PREETHU, ADVOCATE FOR

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SRI. VIGNESH SHETTY, ADVOCATE FOR C/R1;

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R2-SERVED,

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V/O DATED 04.01.2018 NOTICE TO R3 IS D/W)

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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 DTD.16.12.2016 ISSUED BY R-1 VIDE ANNEXD AND ETC.,

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

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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 possession notice dated 16.12.2016 issued by the respondent No.1 and the consequent notice/letter dated 01.12.2018 issued by the respondent No.2.

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It appears that the petitioner stood guarantee for the overdraft facility extended by the respondent No.1 in favour of the respondent No.3. The respondent No.1 issued a notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of the Security Interest Act, 2002 (henceforth referred to as the 'SARFAESI Act' for short), calling upon the petitioner and the respondent No.3 to pay outstanding of Rs.20,00,000/-. The petitioner claims that the

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said notice was not served on him. Later, the respondent No.2 issued another notice under Section 13(2) of the SARFAESI Act on 02.07.2016 calling upon the petitioner and the respondent No.3 to pay the arrears of the overdraft. The petitioner claims that the respondent No.2 had clandestinely managed to get his property mortgaged for the overdraft facility to the respondent No.3. The petitioner replied to the notice and requested the respondent-bank not to take any coercive steps. Nonetheless, the respondent-bank took out proceedings under Section 13(4) of the SARFAESI Act by taking symbolic possession of the property mortgaged by the petitioner. Later, the respondent No.1 had issued a letter dated 01.12.2018 calling upon the petitioner to quit and deliver vacant possession of the property. The petitioner is therefore before this Court challenging the proceedings under Sections 13(2) and 13(4) of the SARFAESI Act, as well as the letter addressed by the respondent-bank to the petitioner to vacate the premises.

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The learned counsel for the petitioner submitted that the notice issued under Section 13(2) of the SARFAESI Act is not in accordance with law, as it was incumbent upon the respondent No.2 to consider the reply submitted by the

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NC: 2025:KHC:37436 WP No. 202 of 2017

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petitioner. He also claimed that no steps are taken by the respondent-bank under Section 14 of the SARFAESI Act and therefore, the respondent No.1 cannot compel him to vacate the premises in question.

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The learned counsel for respondent No.1 submitted that this writ petition is not maintainable in view of an alternate remedy under Section 17 of the SARFAESI Act. She also contended that the Hon’ble Apex Court in the case of South Indian Bank Limited and Others v. Naveen Mathew Philip and Another - (2023) SCC Online SC 432, has categorically held that the writ petition under Article 226 of the Constitution of India is not maintainable, in view of a remedy provided under the Act. She therefore contends that the writ petition is liable to be rejected.

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I have considered the submissions of the learned counsel for the petitioner and the learned counsel for respondent No.1.

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The petitioner has not disputed that he was a guarantor for the overdraft facility extended by the respondent No.1 to the respondent No.3. He has also not disputed the

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receipt of a notice under Section 13(2) of the SARFAESI Act. He has also claimed that he has replied to the said notice and has claimed that the respondent No.1 has not considered the reply and has proceeded to pass an order under Section 13(4) of the SARFAESI Act. If that be so, the appropriate remedy for the petitioner is to approach the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, as the words 'any person' in Section 17 of the SARFAESI Act not only includes a borrower but also the guarantor or any person claiming though the borrower, in any manner whatsoever. As rightly contended by the learned counsel for the respondent No.1, the Hon’ble Apex Court in the case of South Indian Bank Limited and Others,

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referred supra , has castigated the High Court for exercising jurisdiction under Article 226 of the Constitution of India in matters relating to or arising out of the SARFAESI Act.

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In that view of the matter, this petition is not maintainable and accordingly is dismissed . However, liberty is reserved to the petitioner to approach the Tribunal in accordance with law. If a petition is filed before the Tribunal, the time consumed in pursuing this writ petition shall be deducted while calculating the applicable limitation. It is

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