Madras High Court
E.Sendhil Kumar vs The Authorised Officer on 22 February, 2021
W.P.No.6092 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.02.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.No.6092 of 2020
E.Sendhil Kumar ... Petitioner
Vs.
The Authorised Officer
Tamilnad Mercantile Bank Limited
Chennai Aminjikarai Branch
650, Poonamallee Road
Aminjikarai
Chennai 600 029. ... Respondent
Prayer: Petition under Article 226 of the Constitution of India praying
for a writ of Certiorari to call for the records of the letter dated
26.02.2020 issued by the respondent and quash the same.
For Petitioner : Mr.A.V.Arun
For Respondent : Mr.V.Chandrasekaran
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W.P.No.6092 of 2020
ORDER
(Made by SENTHILKUMAR RAMAMOORTHY,J)
The writ petitioner is an auction purchaser at an auction sale
conducted by the respondent bank through its authorised officer.
2. The writ petitioner asserts that 24 cents of land out of the 92
cents that were purchased by him at such auction sale were
unapproved and that this fact was not disclosed by the respondent
bank in the auction sale notice.
3. The respondent bank asserts that the auction purchaser took
inspection of the title documents and was fully aware that the said 24
cents were unapproved. In addition, the respondent bank contends
that the sale was made on an "as is where is whatever there is" basis.
Consequently, it is contended that the principle of caveat emptor
would apply not only to patent, but also to latent defects.
4. Learned counsel for the writ petitioner relies upon the
judgment of this Court reported in 2010 (4) CTC 627 (Jai Logistics v.
The Authorised Officer, Syndicate Bank) to contend that the bank is
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W.P.No.6092 of 2020
required to disclose all known encumbrances as per Rule 8 of the
Security Interest (Enforcement) Rules, 2002, and the judgment
reported in (2013) 3 MLJ 885 (N.Suresh v. Indian Bank) for the
proposition that Section 55(1)(a) of the Transfer of Property Act, 1882
imposes an obligation on a seller to disclose all latent defects. This
contention is refuted by learned counsel for the bank on the basis that
Section 55 is subject to a contract to the contrary, and that the
expression "as is where is whatever there is" constitutes a contract to
the contrary. He also contends, on a demurrer, that only
encumbrances need be disclosed, and that there is no encumbrance.
5. From the above narration, it is evident that both disputed
questions of fact and questions of law arise for consideration in this
writ petition. The undisputed position is that the auction purchaser has
participated in the auction proceedings initiated by the respondent
bank to bring the property to sale in terms of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002. The said statute, undoubtedly, provides for a
statutory remedy for any aggrieved person, which would include the
auction purchaser in this case.
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W.P.No.6092 of 2020
6. In view of the fact that there is an efficacious alternative
statutory remedy and keeping in mind that disputed questions of fact
evidently arise in this case, and such disputed questions of fact cannot
be conveniently addressed in summary proceedings by affidavit
evidence, we are not inclined to exercise discretionary jurisdiction in
this case.
7. Therefore, W.P.No.6092 of 2020 is disposed of, albeit without
prejudice to the rights of the writ petitioner to initiate appropriate legal
proceedings before the appropriate Debts Recovery Tribunal, in
accordance with law. In the event such proceedings are initiated within
two weeks from the date of receipt of a copy of this order, the time
taken in prosecuting this proceedings may be excluded and the ground
of limitation shall not be held against the petitioner. There will be no
order as to costs.
(S.B., CJ.) (S.K.R., J.)
22.02.2021
Index : Yes/No
kpl
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W.P.No.6092 of 2020
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(kpl)
W.P.No.6092 of 2020
22.02.2021
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