- 1 - HC-KAR NC: 2025:KHC:34462 WP No. 26161 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 26161 OF 2025 (GM-RES) BETWEEN: SRI CHANNAKESHAVA S/O LATE S.V. GOPALAIAH, AGED ABOUT 50 YEARS, RESIDING AT N0.8 FIRST FLOOR, 10TH CROSS, I MAIN ROAD, VENKATESHWARA LAYOUT, S.G. PALYA BANGALORE 560051. …PETITIONER (BY SRI. VINAYAKA P V.,ADVOCATE) AND: 1. IIFL HOME FINANCE LTD NO. 9 SOMAMERIT VENKATASWAMY NAIDU STREET, TASKER TOWN SHIVAJINAGAR BANGALORE, 560051. 2. SRI MUKESH S.G., S/O LATE S.V. GOPALAIAG, AGED ABOUT 39 YEARS Digitally signed by VANAMALA N Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:34462 WP No. 26161 of 2025 3. SMT S.G.SHASHIKALA D/O LATE S.V. GOPALAIAH, AGED ABOUT 52 YEARS 4. SMT. VIMALA D/O LATE S.V. GOPALAIAG, AGED ABOUT 38 YEARS, RESPONDENTS NO.2-4 R/AT 2ND FLOOR 10TH CROSS, 1 MAIN ROAD, VENKATESHWARA LAYOUT S.G.PALYA BANGALORE 560029. …RESPONDENTS (BY SRI. ATUL N.,ADVOCATE FOR R1) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INIDA PRAYING TO1. ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING THE ORDER DATED 03/07/2025 PASSED IN CRL. MISC. NO. 50370/2025 BY THE LEARNED XI A.C.J.M., BENGALURU, WHEREBY POSSESSION OF THE SCHEDULE PROPERTY HAS BEEN ORDERED TO BE DELIVERED TO RESPONDENT NO.1-IIFL HOME FINANCE LTD. THROUGH A COURT COMMISSIONER WITH POLICE AID; 2. DECLARE THAT THE ENTIRE SCHEDULE PROPERTY COULD NOT HAVE BEEN - 3 - HC-KAR NC: 2025:KHC:34462 WP No. 26161 of 2025 MORTGAGED OR PROCEEDED AGAINST UNDER THE SARFAESI ACT, SINCE THE ALLEGED WILL DATED 08- 12-2017 DOES NOT BEQUEATH THE ENTIRE PROPERTY AND THE SUBSEQUENT PARTITION DEED DATED 01- 08-2022 WAS UNILATERALLY AND FRAUDULENTLY EXECUTED WITHOUT THE PETITIONERS PARTICIPATION; 3. DIRECT THE RESPONDENTS TO EXCLUDE THE 3 BHK PORTION SITUATED IN THE FIRST FLOOR OF THE SCHEDULE PROPERTY AND ONE SHOP IN THE GROUND FLOOR PRESENTLY UNDER THE PETITIONERS POSSESSION AND CONTROL, FROM THE PURVIEW OF THE SARFAESI PROCEEDINGS, INCLUDING POSSESSION, AUCTION OR SALE; 4. STAY ALL FURTHER PROCEEDINGS PURSUANT TO THE IMPUGNED ORDER DATED 03/07/2025 IN CRL. MISC. NO. 50370/2025, INCLUDING ANY STEPS OF DISPOSSESSION BY THE COURT COMMISSIONER OR THE JURISDICTIONAL POLICE, PENDING DISPOSAL OF THE PRESENT WRIT PETITION. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD - 4 - HC-KAR NC: 2025:KHC:34462 WP No. 26161 of 2025 ORAL ORDER The petitioner and his family members are parties to the suit in O.S. No.6494/2024 which is pending on the file of the XI Additional City Civil and Sessions Judge, Bengaluru City [CCH-8], Bengaluru [for short 'the civil Court'], and the petitioner is the plaintiff in this suit. Though the first respondent [a financial institution] was not a party originally to the suit, but is later impleaded. 2. The fulcrum of the petitioner's case in the suit, as is in the present petition, is that some of his siblings, suppressing the Partition Deed dated 01.08.2022 asserting rights under the Will dated 08.12.2017 which cannot have any validity, have mortgaged the entire property with the first respondent and the first respondent proposes to take possession and bring to sale the entire property under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement - 5 - HC-KAR NC: 2025:KHC:34462 WP No. 26161 of 2025 of Security Interest Act, 2002 [for short, 'the SARFAESI Act']. 3. The petitioner's interest is confined only to a shop out of four shops in the ground floor and a three BHK flat in the first floor in the building [the petitioner's properties]. Sri Vinayaka P V, the learned counsel for the petitioner, submits that the first respondent could not have obtained any charge over the petitioner's share based on the last Will and Testament dated 08.12.2017 in view of the subsequent partition deed dated 01.08.2022. 4. When queried, Sri Atul N, the learned counsel for the first respondent, on instructions from the first respondent, submits that the first respondent does not propose to bring the petitioner's share of properties [the aforesaid shop and the apartment in the first floor premises] to sale and that any sale will not prejudice the petitioner's title to - 6 - HC-KAR NC: 2025:KHC:34462 WP No. 26161 of 2025 these two portions or access and use to these portions. 5. This Court is of the opinion that this statement should inure to the petitioner's benefit and the first respondent, if it could act under the SARFAESI Act to recover its dues, must only proceed against those assets which would not include the petitioner's properties and the sale must also not prejudice the petitioner's interest as the owner of these two premises. Therefore, the petition must be disposed of in the light of these conclusions while also providing for liberty to both the petitioner and the first respondent to file a certified copy of this order with the civil Court in O.S. No.6494/2024 for just orders. The petition stands disposed of accordingly. Sd/- (B M SHYAM PRASAD) JUDGE AN/-