Madras High Court
N.Somasundaram vs The Authorised Officer on 29 May, 2024
Author: J.Sathya Narayana Prasad
Bench: J.Sathya Narayana Prasad
W.P.No.13745 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.05.2024
CORAM :
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
and
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
W.P.No.13745 of 2024
N.Somasundaram .. Petitioner
Vs
1.The Authorised Officer,
M/s.City Union Bank Ltd.,
No.68, Vallal Pachaiyapan Street,
Kanchipuram-631 501.
2.The Registrar,
Debt Recovery Tribunal-II,
Addl. Building, 6th Floor, Sastri Bhavan,
Nungambakkam,
Chennai-600 006. .. Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
seeking issuance of a writ of mandamus directing the first respondent
to grant access to the petitioner and his family to the residential part
of the secured property in enable them to survive with the basic
sustenance of their livelihood, till the SA is decided by the DRT on a
date to be fixed by this Court.
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W.P.No.13745 of 2024
For the Petitioner : Mr.Om Prakash
Senior Counsel
for M/s.N.Nagendra Dhivyarajann
For the Respondents : Ms.Ananda Gomathy
for respondent No.1
ORDER
The prayer in the writ petition is to direct the first respondent
to grant access to the petitioner and his family members to the
residential part of the secured property till the disposal of the
Securitisation Appeal by the Debts Recovery Tribunal-II, Chennai.
2. When the matter is taken up for hearing, learned Senior
Counsel appearing for the petitioner submitted that the
Securitisation Appeal was listed for hearing on 25.04.2024. Since
the Presiding Officer was on leave, the matter was adjourned to
24.07.2024. In this regard, the petitioner was directed to file an
affidavit of undertaking that he does not seek possession of the
property, but only access to the property where his family members
are residing.
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3. Learned Senior Counsel for the petitioner has also filed the
affidavit of undertaking. The affidavit of undertaking is extracted
hereunder for ready reference:
“I, N. Somasundaram, S/o.Mr.Nithyanandam,
aged about 49 years, residing at No.22,
Bharathidasan Street, Vedachalam Nagar,
Kancheepuram – 631 501, having temporarily
come to Chennai, do hereby solemnly affirm and
sincerely state as follows:
1. I am the Petitioner herein and as such I am well
acquainted with the facts and circumstances of
this case. The above Writ Petition was heard by
this Hon'ble Court today (29.05.2024, Wednesday)
and on the basis of the submissions made in the
Court, this Affidavit of Undertaking is filed.
2. I state that I have sought for the access and
occupation to myself and my family, to the
residential portion of the property, situate at Plot
No.22, Bharathidasan Street, Vedachalam Nagar
Extn, Kanchipuram, situate in Survey No.31/7D1
(As per sub-division S. No.31/7D1f as per Patta
No.1758) of No.54 Sevelimedu Village,
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Kanchipuram Taluk (secured asset), to survive
with the basis sustenance of our livelihood till the
S.A filed before the Hon'ble DRT II, Chennai is
decided. The subject property, including the two
portions occupied by the tenants, was sealed on
24.04.2024 with all personal belongings and
household articles kept inside. The two tenants
have later vacated the portion by removing their
things. I am seeking relief in respect of my
residential portion alone.
3. I hereby submit that, on this Hon'ble Court
granting me the relief sought for, I undertake to
vacate the said premises on the sale of the subject
property under the provisions of SARFAESI Act,
being upheld in the pending proceedings in
S.A.451 of 2023 on the file of the Hon'ble DRT II,
Chennai.
4. I shall unconditionally abide by the undertaking
given by this Affidavit and such other directions as
may be issued by this Hon'ble Court in the above
Writ Petition.
5. I therefore submit that this Hon'ble Court may
be pleased to accept this Affidavit of Undertaking
and pass appropriate orders in the above Writ
Petition and thus render justice.”
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4. Learned counsel appearing for the first respondent bank
would submit that as per Section 17(3) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for brevity, “the Act of 2002”), the Court does
not have the power to grant an interim relief till the steps that have
been taken by the bank are finally set aside. She would place
reliance on Section 17(3) of the Act of 2002 in order to press her
arguments. She would also rely upon a judgment of the Full Bench
of this Court in the case of Lakshmi Shankar Mills (P) Ltd. and
others v. The Authorised Officer/Chief Manager, Indian Bank and
others, reported in 2008-2-LW 381 and a judgment of the Division
Bench of this Court in Sri Manicka Vinayagar Spinning Mills, rep. by
Joint Managing Director Vetrivel Kannan, 163, Nethaji Road,
Madurai-625 001 v. Authorised Officer, State Bank of India, Circle
Office, Madurai and others (W.P.No.4048 of 2008, decided on
29.09.2008).
5. A careful perusal of the judgment of the Full Bench of this
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Court in the case of Lakshmi Shankar Mills (P) Ltd. (supra) would
show that this Court had held that the Debts Recovery Tribunal
does not have power to grant interim possession of the property
pending disposal of the Securitisation Appeal. Similarly, in the case
of Sri Manicka Vinayagar Spinning Mills (supra), this Court affirmed
the order of Debt Recovery Appellate Tribunal setting aside the
order of Debts Recovery Tribunal had granting interim possession of
the property/management of the Spinning Mill that had been taken
over by the respondent bank.
6. In this particular case, we are neither granting possession
of the property which has been taken by the first respondent bank
nor handing over the management of the property to the writ
petitioner. However, taking into consideration (i) the extreme
climate situation that is prevailing in this State; (ii) that the
petitioner does not have roof over his head and he seeks only
access to the property till the disposal of the Securitisation Appeal,
we feel that the two judgments relied upon by the respondent bank
are distinguishable on facts and are inapplicable to the present
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case.
7. We make it clear that we are not granting possession of
property. All that we grant is only access and occupation of the
property till the disposal of S.A.No.451 of 2023 on the file of the
Debts Recovery Tribunal-II, Chennai.
8. The aforesaid order is passed ex debito justitiae in exercise
of the discretionary powers vested with the Court. This power is
not available to the Debts Recovery Tribunal, which is creature of
the Act of 2002. Section 17(3) of the Act of 2002 is an interdict
against the Debts Recovery Tribunal. The power of this Court under
Article 226 of the Constitution of India cannot be restricted by the
said enactment. We are aware that we have to take notice of the
provisions of the Act while passing orders. The power of this Court
though unbridled is restricted by the self-imposed restrictions that
have been laid down by the Supreme Court and by this Court in
several judgments.
9. Considering the fact that the petitioner does not have a
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roof over his head for himself and his family members, as an
interim measure and that too till the Debts Recovery Tribunal takes
a call on the Securitisation Appeal, we are inclined to grant access
to the petitioner to the residential part of the property, as he pleads
that all his articles are in the said portion which has been sealed by
the bank. The possession that has been taken over by the bank
from the tenants will continue to be with it. The legal and
constructive possession of the property will be with the bank. It is
made clear that the petitioner will have access and occupation of
the residential part of the secured property alone. In case the
Securitisation Appeal is decided against the petitioner, the
petitioner shall hand over possession of the property, as per his
undertaking affidavit.
10. At this juncture, learned Senior Counsel for the petitioner
would state that the petitioner will deposit a sum of Rs.40.00 lakh
(Rupees Forty Lakh only) by 31.05.2024 and a further sum of
Rs.1.30 crore (Rupees One Crore Thirty-Lakh only) on or before
10.06.2024 to the loan account. This submission of learned Senior
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Counsel for the petitioner is recorded.
11. It is made clear that the deposit will not create any equity
in favour of the petitioner and it is only to show his bona fides to
have access and occupation of the property. The deposit depends
upon the further orders that would be passed by the Debts
Recovery Tribunal on or before 15.07.2024.
12. We have been informed that the matter is listed before
the Debts Recovery Tribunal on 24.07.2024. The Debts Recovery
Tribunal-II, Chennai is requested to advance the hearing and
commence the hearing on 14.06.2024 and dispose of the same on
or before 15.07.2024. Both sides agree that they will appear before
the Debts Recovery Tribunal-II, Chennai, on 14.06.2024. The date
is fixed with the consent of both the counsel. The Debts Recovery
Tribunal-II, Chennai, shall ensure that unnecessary adjournments
are not granted in the matter and the final verdict is rendered on or
before 15.07.2024.
13. On the petitioner depositing Rs.40.00 lakh (Rupees Forty
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Lakh only) on or before 31.5.2024, the bank shall afford access and
occupation to the petitioner's residential portion alone.
14. With the aforesaid observations and directions, the writ
petition is disposed of. There shall be no order as to costs.
Consequently, W.M.P.No.14912 of 2024 is closed.
(J.S.N.P.,J.) (V.L.N., J.)
29.05.2024
Index : Yes/No
Neutral Citation : Yes/No
bbr / ssa
To
1.The Authorised Officer,
M/s.City Union Bank Ltd.,
No.68, Vallal Pachaiyapan Street,
Kanchipuram-631 501.
2.The Registrar,
Debt Recovery Tribunal-II,
Addl. Building, 6th Floor, Sastri Bhavan,
Nungambakkam,
Chennai-600 006.
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J.SATHYA NARAYANA PRASAD,J.
and
V.LAKSHMINARAYANAN, J.
bbr / ssa
29.05.2024
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