Sri Channakeshava Vs Iifl Home Finance Ltd. — Writ and Judicial Review | Karnataka HC (2025)

Sri Channakeshava Vs Iifl Home Finance Ltd. — Writ and Judicial Review | Karnataka HC (2025)

What the court decided

AI extract

Outcome

Petition disposed of on the footing that the first respondent shall not bring the petitioner's ground-floor shop and first-floor 3-BHK flat to sale under the SARFAESI Act and any sale shall not prejudice the petitioner's interest as owner of these two premises; liberty to both sides to file a certified copy of the order with the civil Court in O.S. No.6494/2024. No certiorari was issued and no declaration regarding the Will or Partition Deed was made.

Issue for consideration

Whether a writ of certiorari should issue quashing the order dated 03/07/2025 in Crl. Misc. No. 50370/2025 of the XI A.C.J.M., Bengaluru, whereby possession of the schedule property was ordered to be delivered to respondent No.1 through a court commissioner with police aid. +2 more

Ratio / Principle

The first respondent's statement that it does not propose to bring the petitioner's share of properties (the shop in the ground floor and the apartment in the first floor) to sale, and that any sale will not prejudice the petitioner's title to or access and use of these portions, should inure to the petitioner's benefit.

Key takeaways

If the first respondent acts under the SARFAESI Act to recover its dues, it must only proceed against those assets which do not include the petitioner's properties, and any sale must not prejudice the petitioner's interest as owner of the ground-floor shop and the first-floor apartment.ratio¶¶49
Liberty was provided to both the petitioner and the first respondent to file a certified copy of the order with the civil Court in O.S. No.6494/2024 for just orders.ratio¶¶49

Detailed headnote1 paragraphs

Writ Petition (GM-RES) under Articles 226 and 227 of the Constitution of India filed by Channakeshava, plaintiff in O.S. No.6494/2024 pending before the XI Additional City Civil and Sessions Judge, Bengaluru City [CCH-8], challenging the order dated 03/07/2025 of the XI A.C.J.M., Bengaluru in Crl. Misc. No. 50370/2025, whereby possession of the schedule property was ordered to be delivered to IIFL Home Finance Ltd through a court commissioner with police aid. The petitioner's case was that some siblings, suppressing the Partition Deed dated 01.08.2022 and asserting an allegedly invalid Will dated 08.12.2017, mortgaged the entire property with the first respondent, which proposed to sell the whole property under the SARFAESI Act; the petitioner's interest was confined to one shop in the ground floor and a 3-BHK flat in the first floor. Counsel for the first respondent stated on instructions that it would not bring these two portions to sale and that any sale would not prejudice the petitioner's title to or access and use of them. The Court held that this statement should inure to the petitioner's benefit; that if the first respondent acts under the SARFAESI Act it must proceed only against assets not including the petitioner's properties, with any sale not prejudicing the petitioner's interest; and gave both sides liberty to file a certified copy of the order with the civil Court in O.S. No.6494/2024 for just orders. Petition disposed of.

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NC: 2025:KHC:34462 WP No. 26161 of 2025

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 3^RD DAY OF SEPTEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE B M SHYAM PRASAD

WRIT PETITION NO. 26161 OF 2025 (GM-RES)

BETWEEN:

SRI CHANNAKESHAVA S/O LATE S.V. GOPALAIAH, AGED ABOUT 50 YEARS, RESIDING AT N0.8 FIRST FLOOR, 10^TH CROSS, I MAIN ROAD, VENKATESHWARA LAYOUT, S.G. PALYA BANGALORE 560051.

…PETITIONER

Digitally signed by VANAMALA N

Location: High Court of Karnataka

(BY SRI. VINAYAKA P V.,ADVOCATE)

AND:

IIFL HOME FINANCE LTD NO. 9 SOMAMERIT VENKATASWAMY NAIDU STREET, TASKER TOWN SHIVAJINAGAR BANGALORE, 560051.

SRI MUKESH S.G., S/O LATE S.V. GOPALAIAG, AGED ABOUT 39 YEARS

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SMT S.G.SHASHIKALA D/O LATE S.V. GOPALAIAH, AGED ABOUT 52 YEARS

SMT. VIMALA D/O LATE S.V. GOPALAIAG, AGED ABOUT 38 YEARS,

RESPONDENTS NO.2-4 R/AT 2^ND FLOOR 10^TH CROSS, 1 MAIN ROAD, VENKATESHWARA LAYOUT S.G.PALYA BANGALORE 560029.

…RESPONDENTS

(BY SRI. ATUL N.,ADVOCATE FOR R1)

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INIDA PRAYING TO1. ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING THE ORDER DATED 03/07/2025 PASSED IN CRL. MISC. NO. 50370/2025 BY THE LEARNED XI A.C.J.M., BENGALURU, WHEREBY POSSESSION OF THE SCHEDULE PROPERTY HAS BEEN ORDERED TO BE DELIVERED TO RESPONDENT NO.1-IIFL HOME FINANCE LTD. THROUGH A COURT COMMISSIONER WITH POLICE AID; 2. DECLARE THAT THE ENTIRE SCHEDULE PROPERTY COULD NOT HAVE BEEN

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MORTGAGED OR PROCEEDED AGAINST UNDER THE SARFAESI ACT, SINCE THE ALLEGED WILL DATED 0812-2017 DOES NOT BEQUEATH THE ENTIRE PROPERTY AND THE SUBSEQUENT PARTITION DEED DATED 0108-2022 WAS UNILATERALLY AND FRAUDULENTLY EXECUTED WITHOUT THE PETITIONERS PARTICIPATION; 3. DIRECT THE RESPONDENTS TO EXCLUDE THE 3 BHK PORTION SITUATED IN THE FIRST FLOOR OF THE SCHEDULE PROPERTY AND ONE SHOP IN THE GROUND FLOOR PRESENTLY UNDER THE PETITIONERS POSSESSION AND CONTROL, FROM THE PURVIEW OF THE SARFAESI PROCEEDINGS, INCLUDING POSSESSION, AUCTION OR SALE; 4. STAY ALL FURTHER PROCEEDINGS PURSUANT TO THE IMPUGNED ORDER DATED 03/07/2025 IN CRL. MISC. NO. 50370/2025, INCLUDING ANY STEPS OF DISPOSSESSION BY THE COURT COMMISSIONER OR THE JURISDICTIONAL POLICE, PENDING DISPOSAL OF THE PRESENT WRIT PETITION.

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

CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD

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ORAL ORDER

The petitioner and his family members are parties to the suit in O.S. No.6494/2024 which is pending on the file of the XI Additional City Civil and Sessions Judge, Bengaluru City [CCH-8], Bengaluru [for short 'the civil Court' ], and the petitioner is the plaintiff in this suit. Though the first respondent [ a financial institution ] was not a party originally to the suit, but is later impleaded.

The fulcrum of the petitioner's case in the suit, as is in the present petition, is that some of his siblings, suppressing the Partition Deed dated 01.08.2022 asserting rights under the Will dated 08.12.2017 which cannot have any validity, have mortgaged the entire property with the first respondent and the first respondent proposes to take possession and bring to sale the entire property under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement

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of Security Interest Act, 2002 [for short, 'the SARFAESI Act' ].

The petitioner's interest is confined only to a shop out of four shops in the ground floor and a three BHK flat in the first floor in the building [the petitioner's properties]. Sri Vinayaka P V, the learned counsel for the petitioner, submits that the first respondent could not have obtained any charge over the petitioner's share based on the last Will and Testament dated 08.12.2017 in view of the subsequent partition deed dated 01.08.2022.

When queried, Sri Atul N, the learned counsel for the first respondent, on instructions from the first respondent, submits that the first respondent does not propose to bring the petitioner's share of properties [ the aforesaid shop and the apartment in the first floor premises ] to sale and that any sale will not prejudice the petitioner's title to

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these two portions or access and use to these portions.

This Court is of the opinion that this statement should inure to the petitioner's benefit and the first respondent, if it could act under the SARFAESI Act to recover its dues, must only proceed against those assets which would not include the petitioner's properties and the sale must also not prejudice the petitioner's interest as the owner of these two premises. Therefore, the petition must be disposed of in the light of these conclusions while also providing for liberty to both the petitioner and the first respondent to file a certified copy of this order with the civil Court in O.S. No.6494/2024 for just orders.

The petition stands disposed of accordingly.

Sd/(B M SHYAM PRASAD) JUDGE

AN/-