A.Rajagopal vs The Chief Judicial Magistrate
2023 Latest Caselaw 3898 Mad

                                                                    W.P(MD)Nos.6899 to 6901 of 2023


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             DATED : 06.04.2023

                                                  CORAM :

                          THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
                                             and
                         THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI

                                     W.P(MD)Nos.6899 to 6901 of 2023
                                                  and
                                  WMP(MD)Nos.6451, 6455 and 6454 of 2023

                A.Rajagopal                                ... Petitioner in W.P.6899/23
                Natwarlal                                  ... Petitioner in W.P.6900/23
                Udhay Singh                                ... Petitioner in W.P.6901/23
                                                     vs.

                1. The Chief Judicial Magistrate,
                District Court Buildings, Madurai.

                2. The Authorized Officer,
                Catholic Syriyan Bank Ltd.,
                Asset Recovery Branch,
                2nd floor, Siva Complex,
                54, Old post office road,
                Coimbatore.

                3. G.R.T.Thangapandian                     ... Respondents in all WPs

PRAYER in all WPs : Writ Petitions filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, to direct the 2nd respondent to de seal and restore the possession of the tenant premises in New Door No.42, T.S.No.379, Velliambala Street, Madurai Town, by considering the petitioners' representation dated 24.03.2023.

https://www.mhc.tn.gov.in/judis

W.P(MD)Nos.6899 to 6901 of 2023

For Petitioners(in all WPs) : Mr.A.B.Jeeva For R2 : Mr.S.Babu For R3 : Ms.A.Banumathy

COMMON ORDER (Order of the Court was made by R.SUBRAMANIAN, J.)

These writ petitions are by persons who are claiming to

be tenants of a secured asset, possession of which has been taken

by the Bank with the active help of its counsel on record in execution

of the order of the Chief Judicial Magistrate passed under Section 14

of the SARFAESI Act. Though the presence of the counsel for the

Bank at the premises raises eyebrows, we do not propose to go into

that at present, as the other controversy is much more serious than

the conduct of the counsel in being present at the spot of execution.

2. The petitioners who claim to be tenants of the building

would submit that they have no notice prior to taking possession.

The learned counsel for the borrower would submit that the

application of the borrower challenging the possession order, filed

pursuant to the direction of this Court in the earlier writ petition, is

pending before the Debts Recovery Tribunal at the condone delay

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W.P(MD)Nos.6899 to 6901 of 2023

stage. The counsel for the Bank appeared before the Debts

Recovery Tribunal, took time for counter and before the next

hearing date, the Bank took possession in execution of the order of

the Chief Judicial Magistrate. The conduct of the Bank in taking

possession after having taken adjournment before the Debts

Recovery Tribunal is in bad taste. While the counsel for the

petitioners would rely upon the judgment of the Division Bench of

this Court in A.Mohamed Bowmi and others vs. The Chief

Judicial Magistrate, Dindigul and others (W.P(MD)Nos.16622

to 16634 of 2022, dated 01.08.2022), the learned counsel for

the Bank would rely upon the judgment in Bajarang Shyamsunder

Agarwal vs. Central Bank of India and another reported in

(2019) 9 SCC 94.

3. We have our own doubts as to whether the Bank could

take possession of a premises from a third party without notice to

such third party. If we are to accept the argument of the learned

counsel for the Bank that the Bank is entitled to take possession

from any person without notice to such person immaterial of the

rights claimed by such person, Section 17(4A) of the SARFAESI Act,

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W.P(MD)Nos.6899 to 6901 of 2023

which empowers the Debts Recovery Tribunal to decide on the

validity of the leases and the protection that could be given to

genuine tenants, would be rendered a dead letter.

4. Section 17(4A) of the SARFAESI Act empowers the Debts

Recovery Tribunal to examine whether a lease has expired or stood

determined or is contrary to Section 65A of the Transfer of Property

Act, 1882, or is contrary to the terms of the mortgage or is created

after the issuance of notice of default and demand by the Bank

under sub-section (2) of Section 13 of the SARFAESI Act. Once the

Debts Recovery Tribunal is empowered to consider these issues, it

has to be assumed that a person who claims certain rights over the

secured asset as a tenant has to have notice of the action of the

Bank, so that he could approach the Debts Recovery Tribunal. If we

are to hold otherwise, all applications claiming tenancy will be by

tenants who are dispossessed by the Bank in execution of the order

of the Chief Judicial Magistrate. No doubt, the Debts Recovery

Tribunal is given the power to restore possession.

5. We have an unfortunate situation where the Debts

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W.P(MD)Nos.6899 to 6901 of 2023

Recovery Tribunal at Madurai is not manned and the unfortunate

tenant of the borrower has to approach the Debts Recovery Tribunal

situate at 450 kilometers away at Coimbatore which often refuses to

entertain Madurai matters even on urgency. Creation of Tribunals

and creation of mechanisms in such Tribunals to decide certain

dispute is the domain of the law makers, but such Tribunals created

should also be manned properly, so that the rights of the litigants

are protected. It is claimed in the case on hand, a mother and her

six month old child were booted out of the premises and the

premises was locked.

6. We do not think that, for the sin of the borrower in not

repaying his debt, a tenant should suffer such ignominy, at least,

that is not the purpose for which Courts exist. Emotions apart, the

Bank has to get its money. It is stated that a sum of Rs.38,46,814/-

is due as of today.

7. Considering the circumstances and with a view to protect

the interest of all the parties, the writ petitions are disposed of with

a direction to the Bank to restore possession to the petitioners on

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W.P(MD)Nos.6899 to 6901 of 2023

payment of Rs.10,00,000/- (Rupees Ten Lakhs only) by the third

respondent/borrower to the Bank. The remaining amount shall be

paid in six equated monthly instalments commencing from 20th of

May 2023. The subsequent instalments shall be paid on or before

the 20th of succeeding months. The interest that accrues during the

interregnum shall be paid along with the last instalment. In the

event of default in payment of the money as aforesaid, the Bank will

be at liberty to take re-possession. No costs. Connected

miscellaneous petitions are closed.

(R.SUBRAMANIAN, J.) & (L.VICTORIA GOWRI, J.) 06.04.2023

Index : Yes / No Internet : Yes Neutral Citation : Yes / No bala

To

The Chief Judicial Magistrate, District Court Buildings, Madurai.

https://www.mhc.tn.gov.in/judis

W.P(MD)Nos.6899 to 6901 of 2023

R.SUBRAMANIAN, J.

and L.VICTORIA GOWRI, J.

bala

COMMON ORDER MADE IN W.P(MD)Nos.6899 to 6901 of 2023 DATED : 06.04.2023

https://www.mhc.tn.gov.in/judis