w w w . L a w y e r S e r v i c e s . i n



Dr. Uma Suresh v/s The Authorised Officer, The National Co-Operative Bank Ltd., Bangalore & Others


Company & Directors' Information:- M SURESH COMPANY PRIVATE LIMITED [Active] CIN = U36910MH2004PTC149806

Company & Directors' Information:- BANK OF INDIA LIMITED [Active] CIN = U99999MH1906PLC000243

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226DL1910PLC299886

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226UP1910PLC000093

Company & Directors' Information:- DR I T M LIMITED [Active] CIN = U67120CH1999PLC022651

Company & Directors' Information:- NATIONAL CO LTD [Strike Off] CIN = U51909WB1917PLC002781

Company & Directors' Information:- OPERATIVE INDIA PRIVATE LIMITED [Active] CIN = U74300KA2008FTC048079

Company & Directors' Information:- N BANK LTD [Strike Off] CIN = U65191WB1924PLC000442

Company & Directors' Information:- M AND M BANGALORE PRIVATE LIMITED [Active] CIN = U01403KA2012PTC062199

Company & Directors' Information:- NATIONAL CORPORATION PVT LTD [Not available for efiling] CIN = U51909PB1942PTC000480

Company & Directors' Information:- P N N BANK LIMITED [Strike Off] CIN = U65921TZ1948PLC000153

Company & Directors' Information:- SURESH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51900MH1941PTC003295

Company & Directors' Information:- CORPORATION BANK LIMITED [Strike Off] CIN = U99999KA1972PLC001067

Company & Directors' Information:- NATIONAL CORPORATION PRIVATE LIMITED [Not available for efiling] CIN = U99999MH1950PLC009913

    Writ Petition No. 1845 of 2020 (GM-RES)

    Decided On, 28 July 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE KRISHNA S. DIXIT

    For the Petitioner: Sunil S. Rao, Advocate. For the Respondents: Jayakumar S. Patil, Senior Counsel, R1 & R2, Chethan Kumar, R3 & R4, A.V. Nishanth, Advocates, R5, Anupama Hegde, CGC.



Judgment Text


(Prayer: This Writ petition is filed Under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 21.04.2018 at Annexure-A issued U/S 13(2) of the SARFAESI Act as for being void AB Initio, further all such necessary consequential reliefs quashing the sale notice dated 21.02.2019 found at Annexure-A1 and the consequent confirmation of sale deed 27.03.2019 found at Annexure-A2.)

1. Petitioner being a big borrower of respondent Co- operative Bank, has presented this Writ Petition for laying a challenge to the coercive measures initiated u/s 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [hereafter "SARFAESI Act"] vide Demand Notice dated 21.04.2018, Sale Notice dated 21.02.2019 which culminated into the Sale Certificate dated 27.03.2019, copies whereof are respectively at Annexures-'A', 'A1' & 'A2';

2. The challenge of the petitioners to the impugned action is principally structured on the Division Bench judgment dated 22.04.2013 of the Hon'ble Gujarat High Court in ADMINISTRATOR SRI.DHADAKI GROUP CO- OPERATIVE COTTON SEED VS. UNION OF INDIA, LAWS (GJH)-2013-4-472, whereby, the Central Govt. Notification dated 23.01.2004 in effect, enfolding the Co-operative Banks within the precincts of the SARFAESI Act came to be set at naught.

3. After service of notice, the answering respondents having entered appearance through their Advocates, resist the Writ Petition by making submission in justification of the impugned action, heavily banking upon the recent decision rendered by the Constitution Bench of the Apex Court on 5.5.2020 in PANDURANG GANPATI CHAUGULE VS. VISHWAS RAO PATIL MURGUD SAHAKARI BANK LTD, (2020) SCC online SC 431, which reversed the aforesaid Gujarat judgment; learned CGC also made submission concerning the points addressed by the Apex Court; she contends that all grounds urged in the writ petition, now pale into insignificance in view of the latest pronouncement.

4. Having heard the learned counsel for the parties and having perused the Petition Papers and after adverting to the decisions cited at the Bar, this Court declines to grant indulgence in the matter for the following reasons:

(a) As already mentioned above, this petition is structured on the grounds articulated by the Hon'ble Gujarat High Court in it's judgment referred to above which has been now reversed by the Apex Court in Pandurang Ganpati Chaugule supra; therefore, much of the substratum on which the petition was grounded has withered away by the declaration of law by the highest Court of the country.

(b) The vehement submission of learned counsel for the petitioner, in substance that during the interregnum between the judgment of Hon'ble Gujarat High Court i.e., 22.04.2013 and the decision of the Apex Court i.e., 5.5.2020, the subject Notification of the Central Government having been quashed was not in existence in the eye of law and therefore, the impugned coercive actions that are initiated pursuant to said Notification being without jurisdiction are non est, is bit difficult to countenance; arguably it is true that, in view of the law declared by the Apex Court in KUSUM INGOTS AND ALLOYS LTD Vs. UOI, (2004) 6 SCC 254, when once a central legislation or a sub-ordinate legislation like the Notification in question promulgated thereunder, having operation beyond the territorial limits of a State is struck down by a High Court as being unconstitutional, it's effect transcends the territorial limits of the said court; however, when a decision so striking down is reversed by the Apex Court, ordinarily what is struck down is revived with retrospective effect unless otherwise stated on the lines of the ratio in I.C. GOLAK NATH VS. STATE OF PUNJAB, 1967 (2) SCR 762; nothing is pointed out from the latest decision of the Apex Court to assume that the law declared therein has only a prospective effect; therefore, this contention of the petitioner does not merit acceptance; and,

(c) The other contentions of the petitioner as are taken up in the Writ Petition, in their centrality, touch the competence of the Central Government to issue the Notification of the kind in question and therefore, do not merit examination by this Court in view of latest decision of the Apex Court, as rightly contended by learned Sr. Advocate Mr.Jayakumar S Patil, who appears for the respondent Co-operative Bank and also learned CGC Mrs.Anupama Hegde, representing the 5th respondent- DRT. The stand of the contesting respondents can be reinforced by yet another decision of the Apex Court in C.N.RUDRAMURTHY vs. K.BARKATHULLA KHAN, (1998) 8 SCC 275 wherein the three Judge Bench at para 6 observed as under:

"6. In D.C. Bhatia's case (supra) this Court was concerned with a provision under the Delhi Rent Control Act and Section 3(c) made it clear that the Act was not applicable to any premises whether residential or non-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In Shobha Surendar's case the High Court had proceeded to rely upon Padmanabha Rao's case; when the matter was brought to this Court though no specific reference was made to Padmanabha Rao's case, this Court stated that the law laid down in D.C. Bhatia's case would be applicable, it was not open to the High Court to state that it would prefer to follow the decision in Rattan Arya's case. Indeed it is a matter of judicial discipline that required that when this Court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If that is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya's case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D.C. Bhatia's case. The clear pronouncement made by this Court in Shobha Surendar's case was that D.C. Bhatia's case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao's case. In effect, Padmanabha Rao's case stood impliedly overruled. Thus, it was not at all open to the High Court to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that the D.C.Bhatia's case was applicable to the provisions of Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter...."

5. The passionate contentions of the peti

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tioner's counsel that in view of earlier dicta of the Apex Court, there remain certain questions, answer to which would enure to the benefit of the petitioner despite the Apex Court decision upsetting Gujarat judgment do not merit acceptance in view of the ratio in Rudramurthy Case supra, to the effect that Article 141 of the Constitution of India is not grounded simply on the doctrine of precedent. In the above circumstances, this Writ Petition being devoid of merits, is dismissed; however, on the request of the petitioner-borrower, the respondents are directed not to precipitate the recovery proceedings if pending, only for a limited period of three weeks to be reckoned from this day facilitating the pursuit of further remedy. Costs made easy.
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