- 1 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 9360 OF 2025 (GM-CPC) BETWEEN: 1. SMT. SUGUNA M, W/O LATE SRI. E. NAGESH, AGED ABOUT 58 YEARS, R/AT NO.258, 2 MAIN, 7TH CROSS, SUMATHI KALAYANA MANTAPA PRAKASH NAGAR, BANGALORE - 560 021. 2. SRI. MANIKANDAN N S/O LATE SRI. E. NAGESH AGED ABOUT 37 YEARS R/AT NO.258, 2ND MAIN, 7 TH CROSS, SUMATHI KALAYANA MANTAPA PRAKASH NAGAR, BANGALORE - 560 021. 3. SMT. VIJAY LAKSHMI N D/O LATE SRI. E. NAGESH AGED ABOUT 40 YEARS R/AT NO. 148, 2ND MAIN 4TH CROSS, PRAKASH NAGAR, BANGALORE - 560 021. …PETITIONERS (BY SRI. FAYAZ SAB B.G, ADVOCATE) AND: 1. SMT. BABYAMMA Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 W/O LATE SRI. ETHIRAJ MUDALIYAR AGED ABOUT 78 YEARS R/AT NO.258, 2 ND MAIN 7 TH CROSS, SUMATHI KALAYANA MANTAPA PRAKASH NAGAR, BANGALORE - 560 021. 2. SRI. RAMESH.E W/O LATE SRI. ETHIRAJ MUDALIYAR AGED ABOUT 59 YEARS, R/AT NO.258, 2ND MAIN 7TH CROSS, SUMATHI KALAYANA MANTAPA PRAKASH NAGAR, BANGALORE - 560 021. 3. SMT. PARIMALA D/O LATE SRI. ETHIRAJ MUDALIYAR W/O LATE. E.A. MUNIVELU AGED ABOUT 53 YEARS, R/AT NO.34-11 73/1, MURKAMBATU VILLAGE, SATHYAMMA KOIL STREET, CHITTOR DISTRICT - 517 127. 4. SRI. SARAVANA KUMAR E S/O LATE SRI. ETHIRAJ MUDALIYAR AGED ABOUT 50 YEARS, R/AT NO.258, 2ND MAIN, 7TH CROSS, SUMATHI KALAYANA MANTAPA, PRAKASH NAGAR, BANGALORE - 560 021. 5. THE BANGALORE CITY CO-OPERATIVE BANK REGISTERED OFFICE AT 3, PAMPA MAHAKAVI ROAD, CHAMARAJPET, BANGALORE - 560 018, REP. BY ITS MANAGER AND ALSO THE BANGALORE CITY CO-OPERATIVE BANK - 3 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 BRANCH OFFICE AT NO. 429, 12TH CROSS, WEST OF CHORD ROAD, 2ND STAGE, MAHALAKSHMIPURAM, BANGALORE - 560 086. REP. BY ITS MANAGER …RESPONDENTS (BY SRI. NATARAJ DONKENNANAVAR, ADVOCATE FOR R3; SRI. K.V. LOKESH, ADVOCATE FOR R5) THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 18/03/2025 PASSED IN O.S NO. 1945/2025, PENDING ON THE FILE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-40) AT BANGALORE WHEREIN ORDERED TO ISSUE SUIT SUMMONS AND EMERGENT NOTICE ON LA NO. 1 AND 2 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE TO THE RESPONDENT INSTEAD OF ALLOWING THE SAID INTERLOCUTORY APPLICATION FOR GRANT OF EX-PARTE AD INTERIM ORDER OF TEMPORARY INJUNCTION AS ILLEGAL, ARBITRARY, CAPRICIOUS AND PASSED WITHOUT APPLICATION OF JUDICIAL MIND, WHICH IS PRODUCED AND MARKED AS ANNEXURE-A AND ETC., THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioners are before this Court calling in question an order dated 18.03.2025 in O.S.No.1945/2025, declining to grant ex-parte injunction as was sought for in an application filed under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 ('the CPC' for short). 2. Heard Shri Fayaz Sab B.G., learned counsel appearing for the petitioners; Shri Nataraj Donkennanavar, learned counsel appearing for respondent No.3 and Shri K.V. Lokesh, learned counsel appearing for respondent No.5. 3. The petitioners institutes the aforesaid OS seeking partition and separate possession of the property, surprisingly making the Bangalore City Co-operative Bank as a party respondent to these proceedings. In a partition suit, it is between the family members. The Bank main bought in casts that suspicion upon the very institution of the suit. A backdrop to this is respondent No. 1 - defendant and the other family members are said to have secured finance from the hands of - 5 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 the Bangalore City Co-operative Bank.. Proceedings had been instituted against defendant No.1 by respondent No.5 - bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the SARFAESI Act' for short) and according to the bank the total outstanding as on the filing of a WP.No.1208/2023 was at Rs.95,00,000/-. This Court rejected the petition by the following order: ”3. This Court showing indulgence, granted an interim order of stay on 19.01.2023. The order reads as follows: “Heard the learned counsel appearing for the petitioner. Issue emergent notice to the respondent. The petitioner is before this Court calling in question the impugned notice dated 03.01.2023. There shall be an interim order of stay of the impugned notice dated 03.01.2023, subject to the petitioner depositing 30% of the amount in due to the Bank within 8 weeks from today, in the following manner: (i) 15% of the amount shall be deposited within 4 weeks. (ii) The remainder i.e., 15% shall be deposited within 4 weeks, thereafter. (iii) Any deviation in paying the aforesaid amount within the time line as stipulated hereinabove, even of the first instance, would entail vacation of the interim order and would also run the risk of dismissal of the petition itself.” - 6 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 As on the date of the grant of the interim order, the amount in due according to the respondent - bank is `91,43,500/-. The first chunk of the interim order was complied with but the remainder is not complied with. The condition therein was that, in the event of any deviation in paying the indicated amount within the timeline stipulated, even for the first instance, the petitioner would entail vacation of the interim order and the dismissal of the petition itself. The interim order is not complied in its entirety. 4. On 05.12.2024, the coordinate bench passes the following order: “It is made clear that in the event, the petitioner has not complied with the interim order granted on 19.1.2023, the interim order granted stands vacated.” The coordinate bench was clear that in the event, the petitioner does not comply with the interim order in its entirety, interim order would stand vacated. Even today, the amount that is to be paid in terms of the interim order dated 19.01.2023, despite passage of 24 months is not complied with. 5. Learned counsel for the respondent - bank submits that as on the date on which the interim order was granted, is without hearing the bank. 6. In the light of the petitioner not complying with the interim order despite passage of 24 months, which had to be complied within 8 weeks, no indulgence further can be shown to the petitioner. Therefore, reserving liberty to the petitioner to avail of such remedy as is available in law, the petition stands disposed. 7. In the light of the interim order subsisting in the case at hand, I deem it appropriate to extend time by another 10 days from today, permitting the petitioner to avail of remedy of approaching the Debts Recovery Tribunal, if he so desires. - 7 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 8. In the event, petitioner does not approach the Debts Recovery Tribunal within ten days from today, the interim order would stand vacated automatically and the bank would be at liberty to take steps in accordance with law. 9. With the afore-made observations and directions, the petition stands disposed. I.A.No.1/2024 also stands disposed, as a consequence." The rejection of the petition happens on 19.03.2025 directing the petitioner to avail of the remedy of approaching the Debt Recovery Tribunal within 10 days from the said date. The suit is filed on 15.03.2025, four days prior to the disposal of the petition, albeit the petition being pending. The orders that are passed while disposing the petition would clearly indicate that last chance was granted to the petitioner to make good the payment by a previous order, which was not adhered to and therefore, the petition had to be dismissed. 4. In that light, during the pendency of the petition, the partition suit is said to have been filed, while the suit for partition will have to be decided on its merit, there is no warrant of grant of an interim order or otherwise in the case at hand. The Co-ordinate Bench of this Court, owing to the - 8 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 submission of the learned counsel for the petitioner, had passed the following order on 28.03.2025: "Heard. Issue notice to the respondents. Parties are directed not to create any third party interest in respect of petition schedule property, till next date of hearing." The parties were directed not to create any third party interest in respect of the petition schedule property, till the next date of hearing. 5. Respondent No.5 - Bank is a secured creditor. It has a statutory right under the SARFAESI Act to initiate proceedings and take it to its logical conclusion. It is the settled principle of law that against the SARFAESI proceedings, no civil suit would lie, prima facie, the borrower who has defaulted is wanting to achieve what could not be achieved before this Court in the aforesaid writ petition by filing this suit. While the suit for partition will have to be decided on its merit, there is no warrant of an interim order as it would be stifling the statutory right of the bank to proceed further. - 9 - HC-KAR NC: 2025:KHC:26050 WP No. 9360 of 2025 6. In that light, the petition stands rejected and the interim order of any kind stands dissolved. Ordered accordingly. Sd/- (M.NAGAPRASANNA) JUDGE JY List No.: 1 Sl No.: 13 CT:BHK