Writ Petition No. 20236 of 2022 · The High Court
Case Details
- 1 - NC: 2025:KHC:24563 WP No. 20236 of 2022 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 20236 OF 2022 (GM-RES) BETWEEN: 1. SRI. S. MUTHU AGED ABOUT 60 YEARS SON OF MR SHANMUGAM NO 6, 4TH CROSS NANJAPPA GARDEN NEAR RING ROAD BABUSAPALYA BANGALORE 560043 (BENEFIT OF SENIOR CITIZEN NOT CLAMIMED) (BY SRI. S R SREEPRASAD., ADVOCATE) …PETITIONER Digitally signed by PRAKASH N Location: HIGH COURT OF KARNATAKA AND: 1. THE AUTHORIZED OFFICER PNB HOUSEING FINANCE LIMITED BRANCH OFFICE NO 5, MATRHUSHREE ARCADE 100 FEET RING ROAD IST PHASE, 2ND STGE BTM LAYOUT BANGALORE 560076. 2. THE AUTHORIZED OFFICER PNB HOUSING FINANCE LIMITED REGISTRERED OFFICE 9TH FLOOR, ANTRIKSH BHAVAN 22, KASTURBA GANDHI MARG NEW DELHI 560001. - 2 - NC: 2025:KHC:24563 WP No. 20236 of 2022 HC-KAR 3. MR D PRASANNA MAJOR, NO 73, 1ST AMIN GULABI ROAD, 2ND STAGE NAGARABHAVI BANGALORE 560072.
Legal Reasoning
(BY SRI. FRANCIS XAVIER., ADVOCATE FOR R1 & R2) …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE OF POSSESSION DTD 15.2.2022 IN RESPECT OF LOAN ACCOUNT NO.HOU/MRH/0717/414531 PRODUCED VIDE ANNEXURE-A. 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 Petitioner has sought for setting aside of the possession notice dated 15.02.2022 at Annexure-A. It is to be noticed that this Court had passed a conditional interim order and the petitioner asserts that the interim order has been complied with. 2. Learned counsel for the respondent - Bank however has disputed the same. Even otherwise, it is to be noticed that admittedly, the tenant is claiming rights under the lease. If that were to be so, remedy for the petitioner - - 3 - NC: 2025:KHC:24563 WP No. 20236 of 2022 HC-KAR tenant would be under Section 17(4A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. As to whether the tenancy was created before the mortgage or after, is a factual aspect which cannot be entertained and adjudicated upon in the present proceedings. 3. 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 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. - 4 - NC: 2025:KHC:24563 WP No. 20236 of 2022 HC-KAR 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 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 - 5 - NC: 2025:KHC:24563 WP No. 20236 of 2022 HC-KAR 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. 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." - 6 - NC: 2025:KHC:24563 WP No. 20236 of 2022 HC-KAR 4. 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. 5. 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. 6. In light of disposal of writ petition, it would meet the ends of justice by directing the respondent- bank not to take any precipitative steps for a period of three weeks from today. 7. The interim protection granted under this order is only to enable the petitioner to avail of the 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 - 7 - NC: 2025:KHC:24563 WP No. 20236 of 2022 HC-KAR approach are to look at the matter afresh uninfluenced by the observations made herein. 8. 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 VP