- 1 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 2613 OF 2022 (GM-DRT) BETWEEN: 1. MS. VARSHA MANIMARAN D/O. LATE MANIMARAN S AND LATE MRS M MALATHI, AGED 22 YEARS, VIT AP UNIVERSITY, AMARAVATHI, VIT ROAD, NEAR A.P.GOVT. SECRETARIAT, INAVOLU, ANDHRA PRADESH-522 237. 2. MR. SHASHWAT MANIMARAN, S/O. LATE MANIMARAN S AND LATE MRS. M. MALATHI, MINOR IN AGE SHRISHTI SCHOOL, KATPADI RANIPET ROAD, VELLORE, TAMILNADU-632 014. REPRESENTED BY GUARDIAN, MS.VARSHA MANIMARAN. …PETITIONERS (BY SRI. MANMOHAN P.N, ADVOCATE) AND: 1. CITY UNION BANK LIMITED ADMINISTRATIVE OFFICE, NO.24-B, GANDHI NAR, KUMBAKONAM-612 001. Digitally signed by PRAKASH N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 REPRESENTED BY ITS AUTHORIZED OFFICER. 2. CITY UNION BANK LIMITED MALLESHWARAM BRANCH, NO. 58/1, 13TH CROSS, MARGOSA ROAD, MALLESHWARAM, BENGALURU-560 003. REPRESENTED BY ITS BRANCH HEAD. 3. M/S. SHALINI TEXTILE AND READYMADE NO.18, NEAR SRIRAM TEMPLE, DEVRACHIKKANAHALLI, BENGALURU-560 068. REPRESENTED BY ITS ROPRIETORS. 4. MR. M.N.CHENNAIYAN S/O M.N.NAGARAJ, AGE NOT KNOWN TO THE APPLICANTS, PRESENTLY R/AT DOOR NO.150, PULIYAR STREET, MADEPALLI, KRISHNAGIRI DISTRICT-635 104. TAMILNADU. 5. MRS.SUMATHI W/O MR.M.N.CHENNAIYAN, AGE NOT KNOWN TO THE APPLICANTS, PRESENTLY R./AT DOOR NO.150, PULIYAR STREET, MADEPALLI, KRISHNAGIRI DISTRICT-635 104. TAMILNADU. 6. MR.P.DHAMODARA RAJU S/O. VENKATA RAJU.P, AGE NOT KNOWN TO THE PETITIONERS, R/AT NO.19, 3RD FLOOR, IST MAIN, NRUPATHUNGA NAGAR, - 3 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 NEAR BSNL OFFICE, J.P.NAGAR, 7TH PHASE, BENGALURU-560 078. 7. SRI GURUDATTA FATHER'S NAME AND AGE NOT KNOWN TO THE PETITIONERS, C/O. SRI SRI YOGESHWARA SUBRAMANYANANDA CHARITABLE TRUST, NO.11, HOSAKERE HALLI, BANASHANKARI III STAGE, BENGALURU - 560 065. …RESPONDENTS (BY SRI. PRAKASHA HEGDE K, ADVOCATE FOR R1 AND R2; SRI. K. VIJAYA KUMAR, ADVOCATE FOR C/R6; SRI. NAGABHUSHAN R, ADVOCATE FOR R7; R5 - SERVED) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.29.11.2021 PASSED IN S.A.NO.285/2020 PASSED BY THE DEBT RECOVERY TRIBUNAL-II KARNATAKA AT BENGALURU PRODUCED AT ANNEXURE-L CONSEQUENTLY ALLOW S A NO.285/2020 QUASH THE ORDER DATED 29.11.2021 PASSED IN S.A.NO.289/2019 PASSED BY THE DEBT RECOVERY TRIBUNAL-II KARNATAKA AT BENGALURU PRODUCED AT ANENXURE-M CONSEQUENTLY ALLOW S A NO.289/2019 AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 CORAM: HON'BLE MR. JUSTICE S SUNIL DUTT YADAV ORAL ORDER 1. The petitioners have sought for setting aside of the order dated 29.11.2021 passed in S.A.No.285/2020 copy of which is enclosed at Annexure-L. In terms of the order passed in S.A.No.285/2020, the challenge to the Possession Notice dated 14.09.2018 came to be rejected while the Tribunal has upheld the validity of Demand Notice under Section 13(2) and the Possession Notice under Section 13(4). 2. The petitioners have also sought for setting aside of the order passed in S.A.No.289/2019. By virtue of the said order, the Debt Recovery Tribunal has dismissed the application filed challenging the issuance and Sale Certificate and has upheld the action of the respondent - Bank. Various contentions have been raised by learned counsel Sri P.N.Manmohan while assailing the orders including that the security that was furnished was a - 5 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 Mortgage Deed and that such mortgage deed included the interest of a minor who is petitioner No.2 as on the date of the execution of the mortgage deed and in terms of Section 8 of the Hindu Minority and Guardianship Act. The act of executing a mortgage deed on behalf of the minor, not fulfilling the conditions, the said mortgage deed is not binding on the minor petitioner. Further contention is also raised that at the relevant point of time of execution of the mortgage deed, mother has affixed signature to the mortgage deed who unfortunately was suffering from Paranoid Schizophrenia. 3. It is submitted that this is a case of undue hardship and the Court ought to entertain the petition despite availability of substantive legal remedy by way of an appeal. It is submitted that even if the petitioners were to approach the Debts Recovery Appellate Tribunal in terms of Section 18 as against the orders passed in the securitization application, petitioners may not be in a position to adhere to the deposit condition as required and - 6 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 accordingly, petitioners ought not to be relegated to avail of the substantive remedy. 4. Learned counsel appearing for the respondent - Bank would submit that the petitioners ought to be relegated to avail of the substantive remedy under Section 18 of the SARFAESI Act as against the orders passed by the DRT and the contentions raised being factually dense ought not to be adjudicated upon in the present proceedings. 5. Learned counsel for the auction purchaser has submitted that the auction purchaser has been issued with a Sale Certificate and the rights have crystallized and in light of the judgment of the Apex Court in the case of Celir-LLP vs Bafna Motors (Mumbai) Pvt. Ltd. and Others reported in (2024) 2 SCC 1 right of redemption is not available. 6. It must be noticed that insofar as the contention raised by learned counsel for the petitioners, the very contention were a subject matter of attack of actions of - 7 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 the Bank by way of SAs filed before the DRT in S.A.No.285/2020 and S.A.No.289/2019. The DRT has rejected both the securitization applications by a reasoned order. 7. The perusal of the same would indicate that the very contentions raised by the petitioners herein have been referred to in the narration of facts in the impugned orders. Perusal of the order passed in S.A.No.285/2020 would indicate the contention regarding the mother's illness being adverted to in Paras 4 and 9 by way of narration. 8. The further contention that the mortgage was not binding on the petitioners' herein as it was product of fraud is also referred to at Paras 10 and 11. The petitioners have specifically raised contention that one N.Gurudatta had committed fraud on the applicants and their mother. - 8 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 9. The Tribunal however has upheld the validity of the Possession Notice as well as the Sale Notice by detailed orders. The validity of the mortgage is also been held in affirmative in terms of the observation at Para 29 in S.A.No.285/2020. 10. Learned counsel Sri P.N.Manmohan no doubt has stated that the suit filed before the Trial Court would cover all legal aspects and is still pending in the present writ petition be deferred till conclusion of the pending suit. However, such contention cannot be accepted. 11. Insofar as the orders in S.A.No.285/2020 and S.A.No.289/2019 in terms of Section 18 of the SARFAESI Act, a substantive remedy of appeal is provided for. The provisions under the SARFAESI Act are a self-contained code and also provide for appeal. The Apex Court in the case of United Bank of India vs. Satyawati Tondon and Others - (2010) 8 SCC 110 has adverted to a complete scheme being provided under the SARFAESI Act and it is observed that High Courts ought not to entertain - 9 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 the writ petition. While it is not in dispute that the writ petition theoretically would be maintainable as despite availability of alternative remedy on grounds made out which are well known, exceptions for exercise of power under Article 226, writ petition could be entertained. While the question of maintainability is not in dispute and is a settled position of law wherein writ petitions could be filed on exceptions made out, however aspect of entertainability is one of judicial discretion. 12. In light of the order of Apex Court in the case of Satyawati Tondon (supra), the court is not inclined to adjudicate in the writ proceedings and refuses to entertain the petition. 13. The contentions raised are factually dense and such contentions are appropriate to be dealt with in the appeal filed against SAs, which have been rejected. The petitioners having raised the very same contentions while assailing the action of the issuance of Possession certificate and Sale certificate before the DRT, legal - 10 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 redressal ought to be taken by way of appeal before the DRAT under Section 18. 14. Learned counsel for the petitioner has relied on the judgments relating to Section 8 of the Hindu Minority and Guardianship Act in the case of Saroj vs. Sunder Singh and others 2013 15 SCC 727. No doubt the position of law is well settled. However, whether the facts of the present case make out violation of the legal mandate of Section 8 is a factual finding and any observation made herein would prejudice the prosecution of substantive remedy by way of appeal to which parties are being relegated. 15. Reliance is also placed on the case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing Quota vs. Shukla and Brothers to contend that the order passed should be a speaking order upon application of minor which in the present case is not so. Legal position is well settled. But however in light of the availability of substantive remedy and the - 11 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 petitioner having taken the first step of challenge of banks action under Section 17, the logical legal consequence of exhausting the second level of appeal hierarchy is the only procedural remedy that can be recognized. Accordingly, the petition is disposed off relegating the petitioner to avail of the substantive remedy under Section 18 insofar as the orders in S.A.No.285/2020 and S.A.No.289/2019 as per law. The court has restrained from entering into the legal position as regards the contentions advanced as that would prejudge the case and such matters are left to be adjudicated by way of substantive statutory available remedy. 16. The respondent - Bank not to take further precipitative steps pursuant to the impugned order for a period of 4 weeks from today. 17. Insofar as the time spent before this Court, needless to state it is open for the petitioners while taking recourse to the substantive remedy to place before the Appellate Authority time spent before this Court which may be taken - 12 - HC-KAR NC: 2025:KHC:26607 WP No. 2613 of 2022 note of appropriately while considering the aspect of limitation. 18. Learned counsel for the petitioners has at this stage submits that they would take appropriate action against the impugned orders before the Appellate Court within a period of 4 weeks. All contentions are kept open. Sd/- (S SUNIL DUTT YADAV) JUDGE DHA List No.: 1 Sl No.: 28 CT: BHK