Writ Petition No. 19280 of 2022 · The High Court
Case Details
- 1 - NC: 2025:KHC:24992 WP No. 19280 of 2022 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 19280 OF 2022 (GM-RES) …PETITIONER BETWEEN: 1. SRI. MOHAMMED HANIEF S/O MOULA SAB, AGED ABOUT 63 YEARS, R/O 1ST MAIN, 4TH CROSS, VIDHYANAGARA B BLOCK, HARIHARA, DAVANAGERE DISTRICT 577005. SENIOR CITIZEN BENEFIT NOT CLAIMED. (BY SRI. V B SIDDARAMAIAH., ADVOCATE) AND: 1. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, MS BUILDING, DR B.R.AMBEDKAR VEEDHI, BENGALURU-560001. 2. THE DEPUTY COMMISSIONER DAVANAGERE DISTRICT, PB ROAD, DAVANAGERE 577501. 3. THE TAHSILDAR HARIHARA TALUK, HARIHARA, DAVANAGERE DISTRICT. Digitally signed by PRAKASH N Location: HIGH COURT OF KARNATAKA 4. THE MANAGER AND AUTHORISED OFFICER KARNATAKA PATNA SAHAKARA BANK NIYAMITHA, 657/1A, 1ST FLOOR, - 2 - NC: 2025:KHC:24992 WP No. 19280 of 2022 HC-KAR MANDIPET, DAVANAGERE 577601.
Legal Reasoning
5. SRI MARIYOJI RAO G H S/O LATE G H HANUMANTHA RAO, AGED ABOUT 56 YEARS, R/O MARATHAGALLI, HARIHARA DAVANAGERE DISTRICT 577601. (BY SRI. SHAMANT NAIK, AGA FOR R1 TO R3; SRI. HAREESH BHANDARY T, ADVOCATE FOR R4; SRI. GIRIDHAR H, ADVOCATE FOR R5) …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE MEMORANDUM BEARING NO.MAG(2).CR.65/22-23 DTD 08.09.2022 ISSUED BY THE R5, THE TAHSILDAR, HARIHARA TALUK, DAVANAGERE DISTRICT, ISSUED AGAINST THE R5, FOR TAKING POSSESSION OF THE PROPERTY BELONGS TO THE PETITIONER AND HIS FAMILY VIDE ANNEXURE-R. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S SUNIL DUTT YADAV ORAL ORDER The petitioner has called in question the validity of the Possession Notice dated 21.03.2022 at Annexure-'Q' as well as the notice of the Tahsildar, wherein the Tahsildar is seeking to recover the dues of the Bank as arrears of land revenue. The petitioner has raised various contentions including that the mortgage was created by - 3 - NC: 2025:KHC:24992 WP No. 19280 of 2022 HC-KAR respondent No.5 in favour of the Kanaka Pattana Sahakara Bank Niyamita and no such mortgage is created by the petitioner. Accordingly, it is submitted that fraud has been committed by respondent No.5 in collusion with respondent No.4 and in light of the same, the Possession Notice is sought to be challenged. 2. Learned counsel appearing for respondent No.4 submits that the factual aspects cannot be raised in the present writ proceedings and substantive remedy, if any, by any person, who is aggrieved would be under Section 17 of the SARFAESI Act. 3. Taking note of the factually dense contentions raised as also the allegation of fraud, it would be appropriate that the petitioner be relegated to avail of the substantive remedy. 4. In light of the contentions raised, it is relevant to take note of the observations of the Apex Court in the case of Union Bank of India v. Satyawati Tondon and - 4 - NC: 2025:KHC:24992 WP No. 19280 of 2022 HC-KAR Others - (2010) 8 SCC 110 that the appropriate remedy would be to relegate the petitioner to seek for substantive remedy before the Debt Recovery Tribunal. The relevant observations of the Apex Court are as follows: "43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi- judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must - 5 - NC: 2025:KHC:24992 WP No. 19280 of 2022 HC-KAR exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. - 6 - NC: 2025:KHC:24992 WP No. 19280 of 2022 HC-KAR 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the Sarfaesi Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection." 5. In light of the observations made by the Apex Court, it can be noticed that several factual contentions raised by the petitioner are the matters that cannot be adjudicated in the present proceedings. 6. Accordingly, the petition is disposed off relegating the petitioner to avail of the substantive remedy as regards the impugned proceedings. All contentions of both the sides are kept open. 7. In light of disposal of writ petition, it would meet the ends of justice by directing the respondent- bank - 7 - NC: 2025:KHC:24992 WP No. 19280 of 2022 HC-KAR not to take any precipitative steps for a period of two weeks from today. 8. The interim protection granted under this order is only to enable the petitioner to avail of his substantive remedy and must not be considered to be an order passed on the basis of adjudication on merits. Upon the lapse of the time stipulated, the protection granted would cease to operate and the authorities before whom petitioner may approach are to look at the matter afresh uninfluenced by the observations made herein. 9. Needless to state that while considering the aspect of limitation, in the event the proceedings are instituted before the DRT, time spent before this Court may be taken note of appropriately. Sd/- (S SUNIL DUTT YADAV) JUDGE VGR