Madras High Court
M.Kannan vs 2 V.S.Mani on 9 June, 2023
W.P.No.5590 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.06.2023
CORAM :
THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.5590 of 2023
M.Kannan .. Petitioner
Vs
1 M/s.Canara Bank
Rep. by its Authorized Person
Kannivadi Branch, Kannivadi
Dharapuram Taluk
Tirupur - 639 202.
2 V.S.Mani
3 M.Suseela
4 M.Nithya
5 C.Somasundaram
6 C.Chinnasamy
7 S.Chanidra Moorthy .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
seeking issuance of a writ of certiorari calling for the records relating
to the impugned e-auction sale notice of the first respondent dated
07.02.2023.
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W.P.No.5590 of 2023
For the Petitioner : Mr.V.Vijayakumar
for M/s.Karan and Uday
For the Respondents : Mr.P.Raghunathan
for M/s.T.S.Gopalan and Co.
for first respondent
: No appearance
for respondents 2 to 7
ORDER
(Order of the court was made by the Hon'ble Chief Justice)
We have heard Mr.V.Vijayakumar, learned counsel for the
petitioner, and Mr.P.Raghunathan, learned counsel for the first
respondent.
2. The petitioner has assailed an e-auction sale notice issued
by the first respondent/bank in respect of the writ property.
3. Learned counsel for the petitioner submits that the
petitioner has purchased the writ property under a registered sale
deed dated 3.7.2000. The said property is mortgaged to the first
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W.P.No.5590 of 2023
respondent/bank by the borrower/guarantor in the year 2019. The
petitioner is neither the borrower nor the guarantor. The petitioner
is a stranger to the loan transaction between the bank and the
borrower/guarantor. The petitioner was not aware of the unilateral
cancellation of the sale deed by the second respondent in the year
2002. The petitioner has challenged the same by filing a civil suit
bearing O.S.No.293 of 2022. The said suit is pending. The first
respondent/bank is also a party to the suit. After receiving notice of
the suit, the first respondent/bank has indulged in the activity of
issuing the e-auction sale notice.
4. According to learned counsel for the petitioner, the property
is owned by the petitioner. The first respondent/bank cannot issue
e-auction sale notice in respect of the property owned by the
petitioner, who is neither the borrower/guarantor nor has created
any security interest in favour of the first respondent/bank.
5. Learned counsel for the first respondent/bank submits that
the writ petition is not maintainable. The action is taken by the
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W.P.No.5590 of 2023
bank under the provisions of the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002.
The only remedy to the petitioner is before the Debts Recovery
Tribunal by filing a securitisation application. Learned counsel for
the first respondent/bank refers to the judgment of the Apex Court
in the case of Jagdish Singh v. Heeralal and others, (2014) 1 SCC
6. According to learned counsel for the first respondent/bank,
the writ petition is collusive action of the writ petitioner and the
borrower/guarantor.
7. Learned counsel for the first respondent/bank further
submits that the e-auction sale notice could not materialize as there
were no bidders and the bank will have to resort to fresh auction
notice.
8. Whether the action of the petitioner is collusive or whether
the cancellation of the sale deed of the petitioner is illegal are the
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W.P.No.5590 of 2023
issues which cannot be gone into by this court in the writ
jurisdiction. The petitioner has already filed a suit challenging the
cancellation of the sale deed and the same is pending. The parties
will have to adduce evidence with regard to the sale deed in favour
of the petitioner and its alleged cancellation. The same is sub
judice before the civil court. The parties may prosecute the same.
If an action under the SARFAESI Act is undertaken, the party has a
remedy before the Debts Recovery Tribunal by invoking the
provisions of the SARFAESI Act.
9. As it is submitted by learned counsel for the first
respondent/bank that pursuant to the e-auction sale notice
challenged in the present writ petition no bids have been received
and the said auction sale has not materialized, the imminent
apprehension of the petitioner also does not survive.
In the light of the above, we dispose of the writ petition with
liberty to the petitioner to avail the alternative remedy as may be
permissible under law. In that event, all contentions are kept open.
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W.P.No.5590 of 2023
There will be no order as to costs. Consequently, W.M.P.Nos.5610
and 5611 of 2023 are closed.
(S.V.G., CJ.) (P.D.A., J.)
09.06.2023
Index : Yes/No
Neutral Citation : Yes/No
sasi
To:
The Authorized Person
Canara Bank
Kannivadi Branch, Kannivadi
Dharapuram Taluk
Tirupur - 639 202.
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W.P.No.5590 of 2023
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU,J.
(sasi)
W.P.No.5590 of 2023
09.06.2023
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