Sayedahmed S/O Allahbaksh vs Manager, Bank Of Baroda Maratha Galli, Opp. Old Deccan Theater Hubballi & Others

B.M. Shyam Prasad, J

The petitioner has impugned the order dated 22.05.2018 in SARFAESI CR No.68/2016-17 (Annexure â€"H) issued by the second respondent

under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short,â €œthe

SARFAESI Actâ€​) as also the consequential notice dated 13.01.2022 (Annexure â€" J) issued by the Tahasildar, Hubballi, the third respondent. The

petitioner would have to avail possession of the subject property to the first respondent, the secured creditor, in terms of this impugned order and the

consequential notice.

The petitioner’s case is that his parents were the undisputed owners of the subject property, and his father has executed gift deed transferring

his undivided share in the property but his sisters have managed to create documents to set up title to the mother’s undivided share though she has

not transferred her undivided share in any manner known to law.

Sri.S.K.Kayakamath, the learned counsel for the petitioner, submits that the petitioner’s mother has died on 15.02.2010 and a purported gift

deed by her is set up in the year 2013. The petitioner has instituted necessary proceedings in O.S. No.809/2019, which is pending consideration on the

file of V Additional Civil Judge, Hubballi, for appropriate relief. The charge over the subject property in favour of the first respondent is irregular, and

if the charge is irregular, the initiation of proceedings including the proceedings under Section 14 of the SARFAESI Act would be impermissible in

law.

Though Sri.S.K.Kayakamath places reliance upon the decision of the Hon’ble Supreme Court inB ajarang Shyamsunder Agarwal vs.

Central Bank of India and another reported in AIR 2019 SC 5017, he is unable to persuade this Court accept that the petitioner cannot work out

his remedy in a proceeding under Section 17 of the SARFAESI Act. The question of proper charge because of the alleged fraud, and every other

question that is thrown up because of such assertion, must necessarily be considered under Section 17 of the SARFAESI Act. As such, this Court is

of the considered view that the petition should be disposed of with liberty to the petitioner to avail such remedy notwithstanding the disposal of this

petition, and to enable the petitioner to avail his alternative remedy, and because the petitioner will have to yield possession on 27.01.2021 consequent

to the impugned order dated 22.05.2018 and the consequential notice dated 13.01.2020, it would be just and reasonable to defer coercive measures by

a period of four weeks from today. Hence, the following order:

ORDER

The petition is disposed of with liberty to the petitioner to avail alternative remedy as contemplated under Section 17 of the SARFAESI Act and the

third respondent is called upon not to take any precipitative action for a period of four weeks from today.