The Authorised Officer vs P.Senthilkumar
2021 Latest Caselaw 14411 Mad

                                       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 19.07.2021

                                                          CORAM :

                                       THE HON'BLE MR.JUSTICE C.V. KARTHIKEYAN
                                                  C.R.P. No.58 of 2021

                   The Authorised Officer,
                   Tamil Nadu Mercantile Bank Ltd.,
                   Namakkal Branch,
                   No.337/7,114-1-B,
                   KKP Complex, Salem Road,
                   Namakkal 637 001                                      .. Petitioner
                                                            Vs.
                   1.P.Senthilkumar
                   2.K.Nagaraj                                            .. Respondents


                   Prayer: Revision Petition filed under Article 227 of Constitution of
                   India to set aside the docket order dated 10.07.2019 in I.A.No.2 of
                   2019 in O.S.No.30 of 2019 on the file of the Sub-Court, Namakkal.

                             For Petitioner           :      Mr.V.Chandrasekaran

                             For Respondents          :      No appearance


                                                          ORDER

The learned counsel for the revision petitioner has stated that

based on a common understanding, the plaintiff and the defendant in

O.S.No.30 of 2019, which is a collusive and tainted suit, have taken a

conscious decision not to appear before this Court.

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2. The defendant in the said suit, K.Nagaraj, son of

V.Kuzhanthagownder, had executed an agreement relating to deposit

of title deeds on 13.08.2014 in favour of Tamil Nadu Mercantile Bank

Ltd. Thereafter, the revision petitioner herein had proceeded in the

manner known to law and issued a demand notice under Section 13(2)

of the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002, with reference to the said

loan availed. Pursuant to such demand notice, possession notice was

also issued and auction sale was completed on 09.12.2019. Despite

the documents having been in possession of the revision petitioner,

unfortunately no further steps could be taken, namely execution of

sale deed could not be effected in favour of the auction-purchaser. The

Sub Registrar had refused to register the sale deed on the ground that

there was an order of attachment by the Civil Court in respect of the

said property. Thereafter, the revision petitioner had made an inquiry

with reference to the proceedings in I.A.No.2 of 2019 in O.S.No.30 of

2019 and came across the order of attachment passed as against the

said property.

3. The said order is extracted below in its entirety:

"Heard. Perused record. The counsel for

__________ Page 2 of https://www.mhc.tn.gov.in/judis/ 6 the respondent and the petitioner have argued in detail and it is seen that the petition has been field for attachment before judgment. Whereas already a prima facie made out and there is no rebuttal evidence put forth by the respondent. Hence the property-mortgage of the petitioner to be attached. Bata in 3 days."

4. It is needless to state that any order passed under Order 38

Rule 5 of the Code of Civil Procedure should be a speaking order, as

various stipulations have been given in the said provision itself,

particularly that the court must be satisfied that the defendant, with

intent to obstruct or delay the execution of any decree that may be

passed against him was about to dispose of his property or remove the

same from the jurisdiction of the Court to the disadvantage of the

plaintiff therein. None of the conditions have been mentioned in the

Docket Order which has been passed and therefore, naturally, the

revision petitioner herein is deeply aggrieved by such order. It is under

these circumstances the revision petitioner had approached this Court

by filing the present revision petition, taking advantage of Article 227

of the Constitution of India.

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5. The revision petitioner having advanced loan to the second

respondent/defendant in O.S.No.30 of 2019, and documents in

accordance with law having been executed in its favour and thereafter,

the revision petitioner having proceeded in the manner known to law

as per the provisions of the SARFAESI Act cannot be denied with

further acts in accordance with the said law because of the order dated

10.07.2019 said to have been passed in I.A.No.2 of 2019 in O.S.No.30

of 2019.

6. I have no hesitation in interfering with the said order and

accordingly, the order under revision is set aside and the petitioner is

granted permission to move forward with respect to the relief as

against the second respondent in the manner known under the

provisions of the SARFAESI Act. The civil revision petition is allowed.

As stated in the first limb of the order, it is apparent that the petitioner

and the defendant in O.S.No.30 of 2019 had a collusive understanding,

since it is very evident that they have both joined not only in the filing

of such collusive suit but also taken a joint decision in absenting

themselves from the present revision proceedings.

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7. In the result, the Revision petition is allowed and the Docket

Order dated 10.07.2019 made in I.A.No. 2 of 2019 in O.S.No. 30 of

2019 is set aside. In view of the absence of the counsels, I am not

inclined to impose any cost. Consequently, C.M.P.No.388 of 2021 is

closed.

19.07.2021 Index : Yes/No mrn

To

The Sub Court, Namakkal

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(mrn)

C.R.P. No.58 of 2021

19.07.2021

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