Madras High Court
Jesima Banu vs Union Of India on 28 April, 2021
W.P.Nos.10574, 10586,
10577 and 10580 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.04.2021
CORAM :
The Hon'ble Mr.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.Nos.10574, 10586, 10577 and 10580 of 2021
and W.M.P.Nos.11168, 11170, 11175, 11180, 11190, 11191
11183 and 11184 of 2021
Jesima Banu .. Petitioner in WPs.10574 &
10577 of 2021
A.Sabin Nihar .. Petitioner in WPs.10580 &
10586 of 2021
-vs-
1.Union of India,
Rep. By its Secretary,
Finance Department,
No.15, Safdarjung Road,
New Delhi.
2.Reserve Bank of India,
Rep. by its Secretary,
P.O.Box 901, Shahid Bhat Singh Road,
Mumbai.
3.REPCO Home Finance Limited,
Rep. by its Authorised Signatory/
Deputy General Manager, REPCO Tower,
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W.P.Nos.10574, 10586,
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Regd. Office at No.33, North Usman Road,
T.Nagar, Chennai,
Branch Office at No.55, IV Main Road,
Gandhi Nagar, Adyar, Chennai 600 020.
4.Fysal Khan
5.Thameem Ansari
6.Jainul Arabu
7.H.Shakeela Banu
8.The Sub-Registrar,
Sub-Registrar Office of Triplicane,
Bharathi Salai, Triplicane,
Chennai. .. Respondents in all
WPs.
Petitions filed under Article 226 of the Constitution of India
praying for issue of Writ of Prohibition : (W.P.Nos.10574 and 10580) –
prohibiting the 3rd respondent from initiating any proceedings under
the SARFAESI Act in pursuance of the Memorandum of Deposit of Title
Deeds dated 15.10.2014, presented on 16.10.2014 registered on
11.06.2015 bearing Doc.No.758 of 2015 on the file of SRO Triplicane
being executed by the respondents 4 and 5 through their Power agent
the 6th respondent herein; (W.P.Nos.10577 and 10586) - prohibiting
the 8th respondent from accepting any kind of deeds in respect of the
property measuring an extent of 2131.75 sq.ft., comprised in
R.S.No.853, New R.S.No.853/7, Block No.22, bearing Door No.205,
Old No.88, and previous No.193, situate at Kammam Dharwaja Lane,
Bharathi Salai (formerly Pycrofts Road), Triplicane, Chennai 600 005
till the disposal of the civil litigations.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.10574, 10586,
10577 and 10580 of 2021
For Petitioners : Mr.R.Venkata Varathan
For Respondents : Mr.A.Ilangovan
for R-1
: Mr.T.M.Pappiah
Spl. Govt. Pleader
for R-8
COMMON ORDER
(Made by The Hon'ble Chief Justice)
The only issue raised by the petitioner has been covered in
several orders of this Court. The petitioner contends that the third
respondent, REPCO Home Finance Limited, is not entitled to invoke the
provisions of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002.
2. The petitioner is aggrieved by the measures taken by the third
respondent under the provisions of the said Act of 2002. The
petitioner says that since the third respondent is not a secured creditor
within the meaning of the definition in the relevant statute, the entire
action taken by the third respondent is without jurisdiction. The
petitioner says that in such circumstances, this extraordinary
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W.P.Nos.10574, 10586,
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jurisdiction has been invoked in preference to the usual remedy
available under Section 17 of the Act. In support of the petitioner's
contention, the petitioner refers to a judgment of this Court rendered
on March 3, 2021 pertaining to REPCO Bank. The petitioner says that
since REPCO Bank is the holding entity of REPCO Home Finance
Limited, the same rule as applicable to REPCO Bank would, ipso facto,
apply to REPCO Home Finance Limited.
3. The contention is flawed and exceptionable. It has been
noticed in several previous judgments that by a notification dated
November 10, 2003, the REPCO Home Finance Limited has been
recognised as a financial institution by the Central Government. In at
least one of the matters dealt with by this Court, the relevant
notification has been referred to on the basis of a copy thereof that
was appended to the papers filed by the REPCO Home Finance Limited.
4. Section 2(1)(zd) of the Act of 2002 defines a “secured
creditor”. Under sub-clause (i) of Section 2(1)(zd), any bank or or
financial institution or any consortium or group of banks or financial
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W.P.Nos.10574, 10586,
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institutions holding any right, title or interest upon any tangible asset
or intangible asset as specified in clause (l) of sub-section (1) of
section 2 of the Act would be reckoned to be a secured creditor.
Section 2 (1) (m) defines a “financial institution”. Sub-clause (ii) in
Section 2 (1) (m) provides for any institution to be specified by the
Central Government under Section 2 (h) (ii) of the Recovery of Debts
due to Banks and Financial Institutions Act, 1993. Such notification
has been issued as noticed above. As a consequence, REPCO Home
Finance Limited has to be regarded as a financial institution within the
meaning of Section 2 (1) (m) of the Act of 2002. Since REPCO Home
Finance Limited has proceeded against the security, REPCO Home
Finance Limited has also to be regarded as a secured creditor within
the meaning of Section 2 (1) (zd) of the Act. As such, notwithstanding
that the holding entity of REPCO Home Finance Limited may not qualify
as a secured creditor within the meaning of the Act of 2002, REPCO
Home Finance Limited eminently qualifies thereunder.
5. Since the principal ground as to jurisdiction urged on behalf of
the petitioners is completely without basis and REPCO Home Finance
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W.P.Nos.10574, 10586,
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Limited is a financial institution and, consequently, a secured creditor
as defined in the Act of 2002, W.P.Nos.10574, 10577, 10586 and
10580 of 2021 are dismissed.
6. The status of the petitioner as described in the present case is
with reference to W.P.No.10574 of 2021. However, it matters little as
to whether the petitioner is a borrower or a guarantor or any other
person aggrieved by any measure adopted by REPCO Home Finance
Limited. For the purpose of the present discussion, REPCO Home
Finance Limited has to be regarded as a financial institution and, upon
a financial institution holding any security, it qualifies to be regarded
as a secured creditor within the meaning of the definition in the Act of
2002. Consequently, W.M.P.Nos. 11168, 11170, 11175, 11180,
11190, 11191 11183 and 11184 of 2021 are closed. There will be no
order as to costs.
(S.B., CJ.) (S.K.R., J.)
28.04.2021
Index : Yes/No
sra
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W.P.Nos.10574, 10586,
10577 and 10580 of 2021
To
1.The Secretary,
Union of India,
Finance Department,
No.15, Safdarjung Road,
New Delhi.
2.The Secretary,
Reserve Bank of India,
P.O.Box 901, Shahid Bhat Singh Road,
Mumbai.
3.The Sub-Registrar,
Sub-Registrar Office of Triplicane,
Bharathi Salai, Triplicane,
Chennai.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.10574, 10586,
10577 and 10580 of 2021
The Hon'ble Chief Justice
and
Senthilkumar Ramamoorthy, J.
(sra)
W.P.Nos.10574, 10577,
10586 and 10580 of 2021
28.04.2021
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