High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 07.12.2007CoramTHE HONOURABLE Mr. JUSTICE P.JYOTHIMANIWrit Petition No.36382 of 2007and M.P.Nos.1 and 2 of 2007Mrs. E.Devi.... Petitioner -Vs.-1. Union of India, Reptd. by the Secretary to Government, Department of Banking Ministry of Finance, Jeevandeep Building, Parliament Street, New Delhi2. The Branch Manager, Indian Bank, Dharapuram Branch, Dharapuram Town, Erode District3. The Authorized Officer, under the Securitization Act, Indian Bank, Circle Office, 359 Dr. Nanjappa Road, Coimbatore - 641 0184. The Debt Recovery Tribunal, Coimbatore reptd. by its Registrar, functioning at Trichy Road, Coimbatore - 455. Mr. Mahalingam, The Presiding Officer, Debt Recovery Tribunal Trichy Road, Coimbatore - 45.... RespondentsPRAYER.: Writ Petition filed under Article 226 of the Constitution ofIndia for the issuance of a writ of certioarified mandamus to call for therecords of Respondents 2 and 3 culminated in the impugned auction salenotice, dated 29.10.2007, issued by the third respondent herein quash thesaid impugned notice dated 29.10.2007 as illegal and without the authorityof law and consequently directing the fourth and fifth respondents toentertain and dispose of the application filed by the petitioner underSection 17 of the SARFAESI Act in accordance with law and to the facts andcircumstances of the case on hand. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mrs. Mathews NedumparaFor Respondents : Mr. Jayesh B.Dolia, for M/s. Aryar's Dock, for R-2 & R-3.O R D E RThe writ petition is filed for the issuance of a writ ofcertioarified mandamus to call for the records of Respondents 2 and 3culminated in the impugned auction sale notice, dated 29.10.2007, issuedby the third respondent herein, quash the same as illegal and without theauthority of law and consequently directing the fourth and fifthrespondents to entertain and dispose of the application filed by thepetitioner under Section 17 of the Securitisation and Reconstruction ofFinancial Assets and Enforcement of Security Interest Act, 2002 (SARFAESIAct) (hereinafter referred to as "the Act") in accordance with law and tothe facts and circumstances of the case on hand.2. Heard the learned counsel for the petitioner as well as Mr.JayeshB.Dolia, learned counsel, who had taken notice on behalf of Bank-respondents 2 and 3.3. In respect of the borrowal by the petitioner from the secondrespondent-Bank, proceedings under Section 13(2) of the Act was initiatedby the Bank by notice dated 04.08.2007. As per the said notice an amountof Rs.1,01,08,158/- was outstanding from the petitioner to the secondrespondent-Bank as on 30.06.2007. Subsequently, the possession notice wasordered, by virtue of the powers under Section 13(4) of the Act on09.10.2007 by the third respondent. Admittedly, as against the saidpossession notice issued under Section 13(4) of the Act, the petitionerhas approached the Debts Recovery Tribunal, Coimbatore, by filing anOriginal Application No.124 of 2007. 4. Learned counsel for the petitioner vehemently contended that asper the judgment of the Supreme Court of India in the case of MardiaChemicals Ltd., etc., etc., v. Union of India and others, etc., etc., andreported in 2004 (2) C.T.C. 759, it has been held that due opportunityshould have been given to the petitioner before the Bank having resortedto the proceedings under Section 13(4) of the Act. His further contentionis that it is true that the petitioner has filed an appeal under Section17 of the Act before the Debts Recovery Tribunal, Coimbatore and further,the Debts Recovery Tribunal, Coimbatore, has adjourned the matter toJanuary 2008 and in the meantime the Bank has proceeded to sell theproperty by fixing the upset price as Rs.90 lakhs. In view of the samethe petitioner was constrained to move this Court by filing the presentwrit petition. https://hcservices.ecourts.gov.in/hcservices/

5. On the other hand, Mr. Jayesh B.Dolia, learned counsel for theBank-respondents 2 and 3 submitted that the petitioner having resorted tohis remedy under Section 17 of the Act, by filing an appeal, cannot comebefore this Court under Article 226 of the Constitution of India andwhatever defence available to him under the Act, she is always entitled toraise the same before the Tribunal in the Original Application No.124 of2007 filed by her. He also fairly submitted that even if a time frame isgiven to the Debts Recovery Tribunal to decide the issue involved in thesaid application and stay petition filed by the petitioner, he has noobjection for the same to which course of action the learned counsel forthe petitioner has also agreed that the petitioner may be directed to gobefore the Debts Recovery Tribunal for stay as well as for the originalapplication at an early date and pass appropriate orders especially in thestay petition.6. In view of the submissions made by the learned counsel on eitherside and in view of the Mardia Chemical's case where the law is wellsettled by the Supreme Court that once the person is affected by theaction of the Bank under Section 13(4) of the Act, a remedy is availableunder Section 17 of the Act, the writ petition is disposed of with thedirection to the Debts Recovery Tribunal, Coimbatore, to take up theapplication filed by the petitioner in O.S.No.124 of 2007 along with theapplication filed by the petitioner for stay in I.A.No.2428 of 2007 offurther proceedings, pursuant to the proceedings of the Bank under Section13(4) of the Act and pass appropriate orders. It is made clear that evenif the Debts Recovery Tribunal, Coimbatore, is in dearth of time in takingup the original application filed by the petitioner, it shall takeinterlocutory application for stay and decide the same after hearing boththe parties within a period of ten (10) days from the date of receipt of acopy of this order. It is made clear that it is open to the petitioner toraise all the points which she has raised in this writ petition, in theapplication filed by her for stay as well as for original application. 7. In view of the above view taken by this Court, the othercontentions relating to the merits of the case are not considered. Nocosts. Consequently, the connected MPs are closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsrk https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government, Union of India, Department of Banking, Ministry of Finance, Jeevandeep Building, Parliament Street, New Delhi2. The Branch Manager, Indian Bank, Dharapuram Branch, Dharapuram Town, Erode District3. The Authorized Officer, under the Securitization Act, Indian Bank, Circle Office, 359 Dr. Nanjappa Road, Coimbatore - 641 0184. The Debt Recovery Tribunal, Coimbatore reptd. by its Registrar, functioning at Trichy Road, Coimbatore - 451 cc To M/s.Mathews Nedumpara, Advocate, SR.72646.1 cc To M/S.Aiyar & Dolia, Advocate, SR.72670.Writ Petition No.36382 of 2007 and M.P.Nos.1 and 2 of 2007 KS(CO)RVL 10.12.2007