PANKAJ L. KOTHARI Vs. D.C. SRIVATHSA

JUDGEMENT

(1.) THIS Contempt Petition is filed complaining of disobedience of the order dated 16.05.2013 passed in W.P.20870/2013 wherein Annexure - 'H' to the writ petition, a sale notice was stayed subject to deposit of Rs. 20 Lakhs within two weeks from 16.05.2013.

(2.) THE case of the complainant is, he is engaged in the catering business in Bengaluru for the last 20 years. He entered into an Agreement of Sale with the third respondent, who is the wife of Sri. Prakash Karia, the partner of the second respondent M/s. Krishna Creations. The third respondent is the sole and absolute owner of the residential apartment bearing No. 2, situated on the first floor of the apartment known as "Divya Manor", admeasuring 933 sq.ft. and constructed on property bearing Corporation No. 29/1, V.S. Raju Road, Palace Guttahalli, Bengaluru. The Agreement of Sale is dated 03.03.2010. The consideration for which sale was agreed was Rs. 40 Lakhs and the case of the complainant is that he paid Rs. 20 Lakhs. Possession of the property was handed over to him. M/s. Krishna Creations had taken a loan from the Indian Overseas Bank and Mrs. Arthi P. Karia stood as a Guarantor and without informing the complainant, handed over the title deeds of the property to the Bank. The property was mortgaged by executing a Memorandum of Deposit of Title Deeds dated 30.09.2011, which was registered in the office of the Sub - Registrar, Gandhinagar, Bengaluru. As the loan was not repaid, the Bank issued a demand notice to the second respondent firm, in the newspapers on 28.07.2012. Possession notice was issued on 19.11.2012 and was duly published in the Indian Express newspaper. M/s. Krishna Creations challenged the possession notice under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal in I.R. No. 1218/2013 on 03.04.2013. The Bank on 29.03.2013 obtained an ex -parte order from the 8th Additional Chief Metropolitan Magistrate, Bengaluru under Section 14 of the SARFAESI Act and put a seal of the Bank outside the door of the property. E -Auction sale notice was also issued by the Bank which is dated 20.04.2013 and the auction was proposed to be held on 24.05.2013. The complainant preferred W.P.20870/2013 challenging the said e -auction sale notice dated 20.04.2013 and sought for an interim order of stay. This Court after hearing the complainant granted an interim order of stay on 16.05.2013 subject to payment of Rs. 20 Lakhs within two weeks from the date of order. The order was also intimated to the accused by letter dated 20.05.2013 which has been acknowledged by the Bank. The case of the complainant is, the said order was complied with by paying the said amount by Demand Draft dated 30.05.2013 in favour o the Registrar General, High Court of Karnataka. The stay order has been extended. On 28.10.2013, the Bank for the first time, took up objections that the interim order granted by this Court had not been complied with. The complainant submits that it was pointed out to them that the amount has been deposited in terms of the Court order and the same was also noted in the order -sheet of writ proceedings. Subsequently, the Bank served an application for bringing new facts on record in the writ proceedings in which the accused has issued a fresh auction notice and sold the property to a third party in utter violation of the interim order granted by this Court. The e -auction fresh notice was issued as early as 02.09.2013. Sale was confirmed on 20.09.2013 and 27.09.2013 respectively. It is only after a month and a half, these facts are brought on record on 21.11.2013. Therefore, the complainant was constrained to file a contempt petition before this Court in CCC No. 3536/2013 on 16.12.2013, well within the period of one year. The Bank appeared through counsel, filed their objections contesting the matter. After hearing both the parties, this Court was pleased to pass an order dated 18.02.2014 recording a finding that there was utter disobedience of the interim order dated 16.05.2013 of this Hon'ble Court by the Bank and posted the case for framing of charges. Challenging the said order, the Bank preferred a Special Leave Petition before the Hon'ble Supreme Court in Civil Appeal No. 5584/2014. After service of notice to the complainant, the Hon'ble Supreme Court held that the complainant has not made any allegation against Bank or any employee nor has any allegation made with regard to willful disobedience of the Court's order. Therefore, they were of the view that the contempt application was not maintainable. They further observed that the High Court should have rejected the contempt application at the threshold. Therefore, they set aside the order dated 18.02.2014 passed by this Court and allowed the appeal. However, they reserved the liberty to the complainant to file a proper petition for contempt against the Appellant Bank or any concerned individual, if there is any willful disobedience or violation of the Court's order. In fact, the complainant sought for review of the said order, which came to be dismissed by the Hon'ble Supreme Court. It is after that order, the present contempt petition is filed only against the accused - Mr. D.C. Srivathsa, the Chief Manager of the Indian Overseas Bank.

(3.) THE fact, which is not in dispute is that the accused has filed an affidavit by way of objections, where he has been described as a retired Chief Manager.