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IN THE HIGH COURT OF DHARWAD BENCH

DATED THIS THE 16 TH DAY OF JANUARY 2015

BEFORE

THE HON’BLE MR.JUSTICE A.N.VENUGOPALA GOWDA

WRIT PETITION No.108562/2014 [GM-RES]

BETWEEN

M/S. VINAYAK INDUSTRIES R/BY ITS PARTNERS

1. SHIVAJI KUMBHAR S/O. RAJARAM KUMBHAR, AGE: 44 YEARS. OCC BUSINESS. R/O. (B) NIPPANI, TQ: DIST: .

2. MRS.GEETA SHEWALE W/O. SANDEEP SHEWALE AGE: 43 YEARS, OCC: BUSINESS R/O. PANGIRE (B) NIPPANI, TQ: CHIKODI DIST: BELGAUM.

3. MR.VISHNU SHINDE S/O DADU SHINDE AGE:50 YEARS, OCC: BUSINESS R/O. PANGIRE (B) NIPPANI, TQ: CHIKODI DIST: BELGAUM. ... PETITIONERS

(BY SRI. NEELENDRA D GUNDE AND SRI.SUNIL S. DESAI, ADVS.)

AND : 2 :

1. THE KARNATAKA BANK LTD. R/BY AUTHORISED OFFICER SR C S SATISH, CHIEF MANAGER ASSET RECOVERY MANAGEMENT BRANCH, KASTURBA ROAD, BANGALORE-01.

2. THE MANAGER, KARNATAKA BANK, NIPANNI BRANCH AT: NIPPANI. DIST: BELGAUM. ... RESPONDENTS

(BY SRI. C V ANGADI, ADV. FOR R1 & R2 )

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF , PRAYING TO QUASH THE POSSESSION NOTICE DATED 11.07.2014 ISSUED BY THE RESPONDENT NO.1 AS PER ANNEXURE-H, AS ILLEGAL AND VOID, AND ETC.

THIS WRIT PETITION COMING ON FOR ORDERS , THIS DAY, THE COURT MADE THE FOLLOWING: -

O R D E R

This writ petition was filed on 8.9.2014, to quash possession notice dated 11.7.2014, as at annexure-H, issued by respondednt-1 and for grant of consequential reliefs.

2. Petitioner obtained credit facility/term loan facility from the respondent-bank on 20.09.12. He : 3 : submitted an application on 5.2.2014, for rephasement of the term loan vide annexure-C. The bank having issued notice dated 6.3.2014, u/s 13(3) of SARFESI Act, a reply dated 19.4.2014 was submitted. Petitioner applied for one time settlement on 10.07.2014. However, the impugned notice, u/s 13(4) of the Act, vide annexure-F was served on the petitioner. Feeling aggrieved, this writ petition was filed for the grant of relief mentioned supra.

3. While ordering notice to respondents and staying annexure-H, on 15.10.2014, the petitioner was directed to deposit Rs.35 lakhs with respondent-2, within a period of two weeks and further sum of Rs.35 lakhs within a period of four weeks thereafter.

4. Sri C.V. Angadi, learned advocate appearing for respondents submitted on 14.1.2015, that there is non- compliance of condition imposed in the order dated

15.10.2014. Hence, the case was adjourned to report compliance. : 4 :

5. Learned advocate for petitioner submitted that his efforts to get in touch with the petitioners did not fructify and he is of the view that there is non-compliance of the said order, as otherwise, the petitioner would have informed of him of the compliance.

6. The petitioners obtained an interim order, on

15.10.2014, subject to deposit of Rs.70 lakhs, within a period of six weeks. Though more than six weeks has elapsed, the petitioners have not produced any proof with regard to the compliance of the condition imposed in the order dated 15.10.2014.

7. In catena of decisions, apex court has held that writ remedy is not available to a defaulter under SURFESI

Act i.e. as against notice/s issued u/s 13(2) and 13(4) of the Act. Since the Act provides for a separate machinery and as there is no reason to bypass said machinery, this writ petition cannot be entertained. Even otherwise, there being non-compliance of the aforesaid order, petitioners are not entitled to seek remedy, as against the impugned : 5 :

action of the respondents, by invoking the writ jurisdiction

under Article 226 of the Constitution.

In the result, petition is rejected, reserving liberty to the petitioners to avail the remedy, by approaching the

Tribunal established under the Act.

All contentions are kept open. No costs.

SD/- JUDGE

SUB*