- 1 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 20473 OF 2025 (CS-RES) BETWEEN: MRS. SHWETHA B.V, AGED ABOUT 41 YEARS, W/O KIRAN KUMAR, R/AT FLAT NO. 404, S.K. NIDHI APARTMENT, DEREBAIL VILLAGE, MANGALURU - 575 006. …PETITIONER (BY SRI. ASHWIN JOYSTON KUTINHA, ADVOCATE) AND: 1. THE RECOVERY OFFICER AND ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIES, K.C.S.R. 441, DAKSHINA KANNADA DISTRICT CENTRAL CO-OPERATIVE BANK LIMITED, MANGALURU - 575 003. 2. THE SOUTH CANARA DISTRICT CENTRAL CO-OPERATIVE BANK LTD., REGISTERED UNDER KARNATAKA STATE CO-OPERATIVE SOCIETIES ACT, 1959, HAVING ITS REGISTERED OFFICE AT KODIALBAIL, MANGALURU - 575 003, REPRESENTED BY ITS BRANCH MANAGER. 3. MR. JAYANTHA. S S/O. GANAPATHI JOGI, AGED ABOUT 54 YEARS, Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 RESIDING AT NO. 3-137, VAMANJOOR-PILIKULA ROAD, BHAVISHYA NAGAR, THIRUVAIL, VAMANJORR, DAKSHINA KANNADA - 575 028. 4. MR. SATHISH KUMAR S/O. LATE SANJEEVA PURUSHA, R/AT MALEMAR, KOTTARA CHOWKI, DAKSHINA KANNADA, MANGALURU - 575 028. 5. SRI. DURGESH SHETTY S/O. BHOJA SHETTY, R/AT D. NO. 1-27/14, PADMAVATHI NAGARA, TENKA YEKKAR, MANGALURU TALUK, DAKSHINA KANNADA - 574 509. …RESPONDENTS (BY SRI. YOGESH D. NAIK, AGA FOR R1; SRI. RAKSHITH KUMAR, ADVOCATE FOR C/R2; VIDE ORDER DATED 17.07.2025, NOTICE TO R3 TO R5 DISPENSED WITH) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED NOTICE TO VACATE THE SCHEDULE PROPERTY DATED 11.06.2025 ISSUED BY THE R1 IN EXECUTION CASE NO. 482/2022-23 DIRECTING THE PETITIONER TO VACATE THE IMMOVABLE PROPERTY MORE FULLY DESCRIBED IN THE WRIT SCHEDULE PROPERTY STATED HEREIN BELOW WITHIN 7 DAYS OF RECEIPT OF THE NOTICE VIDE ANNEXURE -A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ ORAL ORDER 1. The learned AGA accepts notice for Respondent No.1. 2. Shri Rakshith Kumar, learned counsel who has filed caveat for Respondent No.2 accepts notice for Respondent No.2. 3. Notice to Respondent Nos.3 to 5 is dispensed with, in view of the proposed order to be passed. 4. Petitioner is before this Court seeking for the following reliefs: a. Issue a writ of certiorari to quash the impugned notice to vacate the schedule property dated 11.06.2025 issued by the Respondent No.01 in Execution Case No.482/2022-23 directing the petitioner to vacate the immovable property morefully described in the writ schedule property stated herein below within 7 days of receipt of the notice, vide Annexure-A and b. Grant any other writ, order or direction as this Hon'ble Court deems fit and proper under the circumstance of this case. 5. The petitioner wanted to buy an Apartment situated on the third floor from Respondent Nos.3 and 4 who are builders. As regards the said transactions, the - 4 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 petitioner has approached Respondent No.2/Bank for a loan. The value of the property being Rs.35,00,000/- (Rupees Thirty Five Lakhs only), the petitioner having made his own arrangements for some of the funds had availed a loan from second respondent for a sum of Rs.22,50,000/- (Rupees Twenty Two Lakhs and Fifty Thousand only). The petitioner, defaulted on the said loan and did not make payment of the equal monthly installments (EMI) for two years and in that background, Respondent No.2 had initiated the proceedings. 6. In the meanwhile, the petitioner made efforts to identify a prospective buyer. No buyer came forward on the ground that the Apartment in question, which is situated on the third floor was an illegal Apartment, there being no plan sanction building license issued in relation thereto. The building license being restricted only to the first and second floors. It is in that background, that the petitioner did not - 5 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 make payment of the monies. In the meanwhile, Respondent No.2 had bought the property for auction and sold the same in the said auction on 'as is where is' basis. 7. The petitioner contends that there is a deficiency of service by the Bank in as much as the Bank has sanctioned a loan as regards the property, which is illegally built and there is no plan sanction in relation thereto. 8. An order now having been passed in Execution Case No.482 of 2022-23 calling upon the petitioner to vacate the premises, the same has been challenged in writ proceedings. 9. Submission of the learned counsel, Shri.Ashwin Joyston Kutinha, appearing for the petitioner is that the petitioner continuing in possession of the property, a consumer case having been filed by the petitioner against the Bank, the interest of the petitioner is required to be protected by restraining - 6 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 the respondents from interfering with possession of the petitioner. 10. Shri.Rakshith Kumar, learned counsel appearing for Respondent No.2/Bank submits that this is a third round of litigation in as much as a writ petition in W.P.No.15278 of 2023 (CS-RES) had been filed by the guarantor, earlier, challenging the auction notice, which petition was withdrawn and the writ petition was dismissed on 02nd January, 2024. The petitioner had filed another writ petition in W.P.No.34557 of 2024 (CS-RES) wherein interim orders have been granted and the interim orders were not complied with and as such, this Court, vide order dated 04th February, 2025 dismissed the said writ petition. 11. The present writ petition is a third round of litigation. He submits that the petitioner has been delaying the Bank from obtaining the benefit of the order and as such, this Court ought not to consider the matter but - 7 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 dismiss the above petition by imposing exemplary costs. 12. Heard Shri.Ashwin Joyston Kutinha, learned counsel appearing for the petitioner and Shri.Rakshith Kumar, learned counsel appearing for Respondent No.2/Bank and perused the papers. 13. A perusal of the documents would indicate that it is the petitioner who was interested in buying an Apartment from Respondent Nos.3 and 4 who are builders. It is the petitioner who had identified the Apartment and had approached the Bank for grant of loan, which loan was granted. There is no agreement or privity between the petitioner and the Bank or a duty of the Bank to certify the title of the property. It is on the basis of the representation and documents submitted by the petitioner that the loan application was accepted and allowed and a loan was sanctioned for a sum of Rs.22,50,000/- (Rupees Twenty Two Lakhs and Fifty Thousand only). Be that - 8 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 as it may. These aspects have been considered by the Consumer Forum, where the petitioner has filed a complaint against the Bank. 14. The petitioner, admittedly has failed to make payment of the due amounts. The petitioner had approached this Court once earlier in W.P.No.34557 of 2024 (CS-RES), the interim orders granted by this Court were also not complied with, resulting in dismissal of the said writ petition. Now, the petitioner has approached this Court seeking possession of the property to be protected, which cannot be acceded to, once an auction of the property has been conducted, it would be required for the Bank to hand over the possession of the property to the auction purchaser, in terms of the auction notification that had been issued. The petitioner cannot continue to be in possession of the property, despite being a defaulter of the loan. Even today, there being no attempts made by the petitioner to settle the loan - 9 - HC-KAR NC: 2025:KHC:27041 WP No. 20473 of 2025 account of Respondent No.2, despite an opportunity having been granted. 15. In that view of the matter, no grounds being made out, petition stands dismissed. SD/- (SURAJ GOVINDARAJ) JUDGE DH List No.: 1 Sl No.: 34 CT: BHK