Madras High Court
A.Kaja Khan vs The Union Of India on 8 November, 2021
WP No.23662 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.11.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
WP No.23662 of 2021
1.A.Kaja Khan
2.Parvin Begum
3.K.Mehaboob Khan .. Petitioners
Vs.
1.The Union of India,
rep.by its Secretary to Government,
Ministry of Finance,
Jeevan Deep Building,
Sansad Marg,
New Delhi 110001
2.Union Bank of India,
Assets Recovery Branch,
rep. By its Chief manager,
No.816, Oppanakara Street,
Coimbatore 641 001
3.The Asst. General manager,
Union Bank of India,
No.1087, 3rd Floor, Krishna towers,
Near Lakshmi Mills Junction,
Avinashi Road,
Coimbatore 641 037.
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WP No.23662 of 2021
4.The Chief Manager,
Union Bank of India,
No.816, Oppanakara Street,
Coimbatore 641 001 .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Declaration declaring the rule 9(5) of SARFESI
Rules, 2002 as unconstitutional, ultra vires and non est in law likewise
directing the 2nd respondent to refund the earnest money of
Rs.94,00,000/- to the petitioners which was forfieted by the first
respondent along with the interest at the rate of 12% till 2nd
respondent refunds the same to the petitioners.
For the petitioners : Ms.S.Pooja Shree
ORDER
(Order of the Court was made by The Hon'ble Chief Justice)
The petitioners challenge the validity of Rule 9(5) of the Security
Interest (Enforcement) Rules, 2002. However, it cannot be missed that
the reckless and cavalier manner in which petitions are thrown at the
court is epitomized by the Rules being called, the ‘SARFAESI Rules’,
which the said Rules are certainly not.
2. The grievance of the petitioners is that despite the petitioners
depositing Rs.94 lakh inclusive of the earnest deposit, the respondent
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WP No.23662 of 2021
secured creditor has purported to forfeit the entire amount upon the e-
auction being concluded in the petitioners’ favour but the petitioners
being unable to pay the balance amount due within the time permitted
by the secured creditor.
3. Since the measure adopted by the secured creditor in this
case is one under Section 13(4) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002, the petitioners have a right to approach the
jurisdictional Debts Recovery Tribunal under Section 17 of the Act of
2002. Indeed, under Section 17 of the Act, any person aggrieved by
any measure taken by a secured creditor under Section 13(4) of the
Act may approach the jurisdictional Debts Recovery Tribunal with the
grievance.
4. Since the petitioners have not availed of the regular statutory
remedy available to the petitioners, the writ petition is not entertained
and the legal issue is not decided, though at least one previous
judgment of this court has extensively dealt with the legal question
raised by the petitioners herein.
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WP No.23662 of 2021
5. WP No.23662 of 2021 is not entertained and the petitioners
are left free to pursue the appropriate forum in accordance with law.
There will be no order as to costs. W.M.P.No.24911 of 2021 is closed.
(S.B., CJ.) (P.D.A., J.)
08.11.2021
Index : yes/no
tar
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WP No.23662 of 2021
To:
1.The Secretary to Government,
Ministry of Finance,
Jeevan Deep Building,
Sansad Marg,
New Delhi 110001
2.Chief manager,
Union Bank of India,
Assets Recovery Branch,
No.816, Oppanakara Street,
Coimbatore 641 001
3.The Asst. General manager,
Union Bank of India,
No.1087, 3rd Floor, Krishna towers,
Near Lakshmi Mills Junction,
Avinashi Road,
Coimbatore 641 037.
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WP No.23662 of 2021
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
(tar)
WP No.23662 of 2021
08.11.2021
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