B.EKANATH v. SHUSHRUTI SOUHARDA SAHAKARA BANK NIYAMITHA

(BY SRI. CHIDAMBARA G S.,ADVOCATE) AND:

#1. SHUSHRUTI SOUHARDA SAHAKARA BANK NIYAMITHA, NO.68, SHUSHRUTI NAGAR, ANDRAHALLI MAIN ROAD, PEENYA 2ND STAGE, BENGALURU-560091. REPRESENTED BY ITS MANAGER. - 2 - NC: 2026:KHC:13519 WP No. 17566 of 2021 HC-KAR

#2. V NANJUNDAIAH S/O.VENKATAIAH, AGED ABOUT 55 YEARS, R/O.NO.9, 2ND CROSS, NAGARABHAVI 2ND STAGE, PAPAREDDYPALYA, BENGALURU-560072. …RESPONDENTS (BY SRI. KIRAN KUMAR T L., ADVOCATE FOR R1; V/O DTD 07.11.2024, NOTICE TO R2 IS D/W) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.08.2021,VIDE,ANNEXURE-A PASSED BY THE DEBTS RECOVERY TRIBUNAL II, KARNATAKA AT BENGALURU IN SA NO.378/2020. THIS PETITION, COMING ON FOR DISMISSAL, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI - 3 - NC: 2026:KHC:13519 WP No. 17566 of 2021 HC-KAR ORAL ORDER Aggrieved by the orders passed in S.A.No.378/2020 dated 16.08.2021 by the Debt Recovery Tribunal II, Bengaluru the petitioner is before this Court. The petitioner has approached the Debt Recovery Tribunal [DRT] by filing S.A.No.378/2020 questioning the order passed by Magistrate under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for short, ' the SARFAESI Act']. The petitioner is a third party to the loan transaction and also the measures initiated by the Bank against the borrower and the mortgager.

#2. It is the case of the petitioner that he has purchased the property from one Mr. V. Nanjundaiah [the second respondent] by a registered Sale Deed dated

03.09.2009 and the property is to an extent of 600 Sq. Ft.,. The vendor of the petitioner is the borrower and he has mortgaged the property with the Bank in the year 2004 and as per the mortgage deed, the extent of the land is 1200 Sq. Ft. It is submitted that the borrower had purchased the property - 4 - NC: 2026:KHC:13519 WP No. 17566 of 2021 HC-KAR measuring 1200 Sq. Ft. in the year 2001 [the mortgaged property] and that the borrower has purchased another property measuring 600 Sq. Ft. [the property in dispute]. The respondents have taken possession of the petitioner' property, who is nowhere connected with the loan transaction.

#3. It is the case of the petitioner that the respondent - Bank forcibly took the possession of the petitioner's property. Immediately, after coming to know about the issuance of notice under Section 13(4) of the SARFAESI Act, the petitioner has approached this Court by filing W.P.No.41419/2019 which came to be dismissed as withdrawn on 19.03.2021. Later, the petitioner has filed an appeal before the DRT S.A.No.378/2020 and an application for condonation of 55 days delay is filed. The DRT both on the ground of delay and also on the ground that the petitioner is not an aggrieved party has dismissed the application and the petition. Aggrieved thereby, the present writ petition is filed.

#4. Learned counsel appearing the petitioner submits that the petitioner is an aggrieved party as the property belonging to the petitioner is being attached as per - 5 - NC: 2026:KHC:13519 WP No. 17566 of 2021 HC-KAR the award. It is submitted that the mortgaged property is to an extent of 1200 Sq. Ft. and the respondent - Bank has now attached the property purchased by the petitioner, which is only 600 Sq. Ft. It is submitted that such action of the respondent - Bank is unfair and these aspects were not considered by the DRT.

#5. Learned counsel appearing for the respondent - Bank submits that the petitioner has not taken any steps to bring the borrower on record. It is submitted that at this point of time, all these disputed questions of facts cannot be decided by this Court and the remedy is to go before the civil Court and he has already availed the remedy before the Debt Recovery Appellate Tribunal [DRAT] questioning the order passed by the DRT. Therefore, there are no reasons to interfere with the order passed by the DRT.

#6. Having heard the learned counsel on either side, perused the material on record. It is submitted that the petitioner has purchased the property from the borrower to an extent of 600 Sq. Ft. and the mortgaged property is 1200 Sq. Ft. It is also an admitted fact that what has been attached is - 6 - NC: 2026:KHC:13519 WP No. 17566 of 2021 HC-KAR 600 Sq. Ft. The petitioner has approached the DRT questioning the attachement of an extent of 600 Sq. Ft., which came to be dismissed. Learned counsel for the respondent submits that the petitioner has to go before the civil Court. This submission has no legs to stand. The finding of the DRT cannot sustain because the petitioner is an aggrieved party and he has every right to approach the DRT.

#7. In the facts and circumstances of this case where the petitioner is not a borrower and where it is pleaded that his property is being attached under the guise of mortgage deed and whether the property purchased by the petitioner is one and the same, is an issue that has to be decided by the DRT.

#8. In the light of the above, this Court is inclined to entertain this petition. Accordingly, this Court is passing the following: ORDER i. The impugned passed S.A.No.378/2020 dated 16.08.2021 by the - 7 - NC: 2026:KHC:13519 WP No. 17566 of 2021 HC-KAR Debt Recovery Tribunal II, Bengaluru is set aside. ii. iii. The DRT shall hear the matter on merits of it. The DRT shall decide the appeal within a period of six [6] months from the date of receipt of a copy of this order. iv. Accordingly, the writ petition is allowed. v. All I.As pending if any, in this petition shall stand closed. SD/- (LALITHA KANNEGANTI) JUDGE RB