Madras High Court
V.Rajasekaran vs The Authorized Officer on 26 October, 2023
W.P.(MD)No.25998 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
and
THE HONOURABLE MR.JUSTICE P.DHANABAL
W.P.(MD)No.25998 of 2023
and
W.M.P.(MD)Nos.22374 & 22375 of 2023
V.Rajasekaran : Petitioner
Vs.
1.The Authorized Officer,
Tamilnad Mercantile Bank Ltd.,
D.No.25/1, M.B.S.Araharam,
Trichy – Karur Main Road,
Kulithalai – 639 104.
2.Mrs.Devhichand Chilkendevi
3.K.Rajesh Kanna : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying for a Writ of Certiorarified Mandamus, calling for the
records relating to the proceedings of the Chief Judicial Magistrate,
Tiruchirapalli in Crl.M.P. No.28865 of 2022 dated 13.10.2023 and to
quash the same and inconsequentially direct the respondents and to
restore the Auctioned property Land to the extent of 12644 Sq.ft. situated
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W.P.(MD)No.25998 of 2023
at S. No.37/4 and 37/5 and Commercial building constructed threat to the
extent of 3454 S.ft at D. No.V-4/39, Kambarasampatti, Srirangam Taluk,
Tiruchirapalli District infavour of the petitioner.
For Petitioner : Mr.R.Venkatesh
For Respondents : Mr.N.Dilipkumar for R1
ORDER
Heard the learned counsel for the petitioner and the learned
Standing Counsel for the first respondent-bank. Considering the nature
of the order to be passed, issuance of notice to the respondents 2 and 3 is
dispensed with.
2. M/s.Raja Rajeswari Marriage Hall of which the Writ
Petitioner is the managing partner borrowed loan from Tamilnad
Mercantile Bank Ltd. It committed default. Therefore, action under
SARFAESI Act was taken. The property that was offered as collateral
security was brought to sale. It was purchased by the second respondent
herein. The petitioner had filed S.A.No.248 of 2022 on the file of Debt
Recovery Tribunal, Madurai questioning the sale notice as well as the
consequential action. The first respondent - bank has moved Chief
Judicial Magistrate, Tiruchirapalli under Section 14 of the Act and
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W.P.(MD)No.25998 of 2023
obtained an order dated 13.10.2023 for taking possession. Questioning
the same, present Writ Petition has been filed.
3. Learned counsel appearing for the petitioner reiterated all
the contentions set out in the affidavit filed in support of the Writ Petition
and called upon this Court to set aside the impugned order.
4. Learned Standing Counsel appearing for the first
respondent-bank pointed out that the petitioner was not successful in
getting any interim relief at the hands of DRT. He also pointed out that
W.P.(MD)Nos.25947 and 22648 of 2022 filed by the petitioner was
disposed of by the Hon'ble First Bench on 01.09.2023 with liberty to the
petitioner to avail an alternate remedy. Learned Standing Counsel further
stated that conciliation talks between the petitioner on one hand and the
purchaser on other hand did not fructify. He pointed out that the
impugned order is very much amenable to challenge before DRT under
Section 17 of the Act. He relied on a catena of judgments. He submitted
that the present Writ Petition is not maintainable. He pressed for
dismissal of the Writ Petition.
5. We carefully considered the submissions and went through
the materials on record.
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W.P.(MD)No.25998 of 2023
6. As pointed out by the learned counsel appearing for the
petitioner, the Hon'ble First Bench while disposing of the earlier Writ
Petitions made it clear that all the contentions of the respective parties
are kept open. In fact, interim protection earlier granted was also
permitted to continue for five more days so as to enable the petitioner to
avail the alternate remedy. Second Appeal filed by the petitioner is still
pending.
7. More than anything else, the petitioner is ready with a
Demand Draft for a sum of Rs.10 laksh favouring the bank and the
petitioner is ready to pay the balance amount by tomorrow evening itself.
In our view this would adequately protect the interest of the bank. The
petitioner is directed to deposit the entire amount of Rs.41 lakhs to the
credit of S.A.No.248 of 2022 on the file of DRT, Madurai by tomorrow
evening ie., 27.10.2023.
8. Impugned order was passed on 13.10.2023. It is stated by
the petitioner that they received the order copy only on 18.10.2023.
DRT, Madurai is not functioning since 21.10.2023. We are of the view
that the petitioner did not have adequate time to move the DRT against
the impugned order. Since the petitioner shown his bonafide by
producing a Demand Draft for a sum of Rs.10 lakhs and is ready to pay
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W.P.(MD)No.25998 of 2023
the balance amount by tomorrow itself, we are of the view that some
interim protection can very well be given to the petitioner.
9. The learned counsel appearing for the petitioner also points
out that since the property itself has been sold, the bank may not have a
locus standi to move the jurisdictional Chief Judicial Magistrate under
Section 14 of the Act. He relies on the order dated 01.09.2017 made in
W.P.No.21814 (W) of 2017 passed by the Calcutta High Court.
10. Learned Standing Counsel appearing for the first
respondent-bank relies on the decision of the Madras High Court. We
are prima facie of the view that arguable contentions have been
advanced. Since the bank's interest has been adequately protected, we
relegate the petitioner to move the DRT, Madurai questioning the order
impugned in this Writ petition.
11. Learned counsel for petitioner states that appeal under
Section 17 of the Act against the impugned order dated 13.10.2023 made
in Crl.M.PNo.28865 of 2022 on the file of Chief Judicial Magistrate,
Tiruchirappalli will be filed within 10 days from today. Till the DRT
Madurai, dispose of the said Second Appeal, the order impugned in the
Writ Petition shall be put on hold.
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W.P.(MD)No.25998 of 2023
12. The Writ Petition is disposed of accordingly. We make it
clear that all the contentions of both parties are left open. No costs.
Consequently, connected miscellaneous petitions are closed.
13. We make it clear that if the petitioner fails to make the
deposit by tomorrow evening, the benefit of the order shall stand
automatically vacated. The Registrar, DRT Madurai is directed to
redeposit the said amount in an interest bearing account. DRT, Madurai
is directed to club the Second Appeal to be filed by the petitioner along
with S.A.No.248 of 2022 and dispose of them on merits and in
accordance with law within a period of twelve [12] weeks from the date
of receipt of a copy of this order. We make it clear that we have not gone
into the merits of the matter.
[G.R.S.,J.] & [P.D.B.,J.]
26.10.2023
Neutral Citation : Yes/No
Index : Yes/No
Internet : Yes/No
vsm
Note: Issue order copy on 27.10.2023.
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W.P.(MD)No.25998 of 2023
G.R.SWAMINATHAN, J.
and
P.DHANABAL, J.
vsm
ORDER MADE IN
W.P.(MD)No.25998 of 2023
26.10.2023
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