Madras High Court
Kanniammal vs Icici Bank on 26 September, 2024
C.R.P. No. 2598 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.09.2024
CORAM
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
C.R.P. No. 2598 of 2024
and
C.M.P. No. 13648 of 2024
1. Kanniammal
2. Varadaraj ... Petitioners / Appellants / Petitioners
Vs.
ICICI Bank, Edapadi Branch
ICICI Bank
Branch Manager
Salem Main Road
Edappadi Taluk
Salem District.
... Respondent/ Respondent/ Respondent
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order dated 10.06.2024 made in C.M.A.
No. 1 of 2024 on the file of the learned Subordinate Judge, Sankagiri
confirming the order dated 18.12.2023 made in I.A. No. 5 of 2023 in O.S. No.
97 of 2021 on the file of the learned District Munsif cum Judicial Magistrate,
Edappadi by allowing this civil revision petition.
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1/8
C.R.P. No. 2598 of 2024
For Petitioners : Ms. S.Vaiduriya
For Respondent : Ms. M.Deeptha Devi
ORDER
This civil revision petition arises against the order of the learned
Subordinate Judge at Sankagiri in C.M.A. No. 1 of 2024 dated 10.06.2024 in
confirming the fair and decreetal order of the learned District Munsif cum
Judicial Magistrate, Edappadi in I.A. No. 5 of 2023 in O.S. No. 97 of 2021
dated 18.12.2023.
2. O.S. No. 97 of 2021 seeks for the relief of partition and separate
possession. The civil revision petitioners are the plaintiffs in the suit.
According to the plaintiffs, the suit scheduled mentioned property originally
belonged to one Sithha Gounder. The property is a natham property. He was
given a natham patta and was enjoying the same. He passed away and on his
death, the properties were succeeded to by his wife, Kulanthaiammal and
children, Sithhammal, Palanisamy and Chellamuthu. Chellamuthu passed
away on 04.10.1989. Therefore, on the death of Sithha Gounder and
Kulandhaiammal, the properties devolved on the aforesaid persons.
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3. The civil revision petitioners are the wife and son of the deceased
Chellamuthu Gounder. They would plead that the defendants 1 to 4 had
alienated the property in favour of the sixth defendant. According to the
plaintiffs, they are entitled to one-third share of the suit schedule property.
The 6th defendant, in turn, mortgaged the property in favour of the
respondent ICICI bank and secured a loan. The 6th defendant defaulted in
payment of amounts to the bank and therefore the 7th defendant bank brought
the property for auction. On coming to know about the same, they presented
the suit for partition. Pending the suit, they took out an application in I.A. No.
5 of 2023 seeking for an injunction restraining the ICICI bank from
proceeding further with alienation or auction sale of the suit property
including the one-third share of the plaintiffs.
4. ICICI bank entered appearance and pointed out that they had
advanced the loan to the 6th defendant on the basis of the registered sale deed
dated 06.05.2015 and had advanced a loan of Rs. 32,70,000/- in favour of the
6th defendant. As the 6th defendant had committed a default, they had no
other option than to invoke the SARFASEI Act. The bank pleaded Section 34
of the SARFASEI Act is a bar to the suit.
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5. Taking into consideration the respective pleadings, the learned Trial
Judge dismissed the injunction application holding that SARFASEI Act is a
bar to the suit. The said finding has been confirmed by the lower Appellate
Court. Hence, the revision.
6. Heard Ms. S.Vaiduriya for the civil revision petitioner and Ms.
M.Deeptha Devi for the respondent.
7. Ms. S.Vaiduriya would submit that the civil revision petitioners are
not the debtors of the bank. She would state that they had not executed a sale
deed in favour of the sixth defendant but the sale made by the defendants 1 to
4 can only be with respect to their 1/3 rd share, which they obtained on the
death of Sithha Gounder. She argued that the sale deed executed by the
defendants 1 to 4 cannot bind the 1/3rd share of the civil revision petitioners.
She argued that the Debt Recovery Tribunal cannot deal with the said issue
and therefore, the courts below erred in holding that the suit is barred.
8. Ms. M.Deeptha Devi would refer to her counter affidavit and also to
the judgment of the Supreme Court in Punjab and Sind Bank vs. Frontline
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Corporation Limited, 2023 SCC Online SC 470 and would argue that the
order of the courts below requires confirmation.
9. A perusal of the counter affidavit would show that the mortgagor is
the sixth defendant and the mortgagee is the seventh defendant. Nowhere in
the counter affidavit or in the written statement, the respondent has pleaded
that the plaintiffs had joined in execution of the sale deed in favour of the
sixth defendant. The simple plea of the plaintiff is that on the death of
Chellamuthu, they succeeded to his estate. Chellamuthu died as early as on
1989. Sithha Gounder died subsequently. In terms of the Hindu Succession
Act, the legal heirs of the predeceased son are entitled to a share. Therefore,
the plea that the plaintiffs cannot file a suit for partition to enforce their right
over the property to which they succeeded on the death of Sithha Gounder is
untenable.
10. Turning to the judgment cited by Ms. M.Deeptha Devi shows that
the respondent before the Supreme Court was a “borrower”. In terms of
SARFAESI Act, when he is a borrower, his remedy is only before the
Tribunal created under the SARFAESI Act. This judgment cannot be applied
to the case of a third party to a proceeding. A right of the third party, claiming
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a share in the property by virtue of succession, certainly cannot agitated by a
Tribunal created for the limited purpose to determine the rights between a
secured creditor and a borrower.
11. The narration of the aforesaid facts would go to show that the
Courts could have come to a conclusion that a suit for partition is barred by
virtue of Section 34 of the SARFASEI Act. A reading of Section 34 of the
SARFASEI Act would show that a suit is barred, if and only if, the remedies
sought for in the suit can be granted by the Tribunal or the Appellate Tribunal
constituted under the Act. Neither the DRT nor the DRAT, which are the
authorities constituted under the Act, are empowered to grant a decree for
partition. Therefore, the findings of the Court below that the suit is not
maintainable cannot be held to be the correct position of law.
12. Though the suit is maintainable, the plaintiff still has to prove the
triple test in order to get the benefit of injunction. The fact that the plaintiffs
are not parties to the sale deed in favour of the defendant shows that they
have a prima facie case. However, the bank having advanced a sum of Rs.
32,72,000/- cannot be left high and dry on account of the fact it has a valid
mortgage in its favour executed by the 6th defendant. In case the property is
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sold in the SARFASEI Act, the interest of the civil revision petitioners will be
jeopardised. Apart from that, the purchaser in such a sale would not get full
title to the property. The interest of both sides would have to be balanced.
Therefore, the civil revision petitioners will be entitled to an order of
injunction, in case they deposit a sum of rupees Rs. 36,60,548/- within a
period of 12 weeks from today. In case the said amount is not deposited, M/s.
ICICI Bank is at liberty to proceed further with the same. At the time of such
sale, the bank shall clearly state about the pendency of this suit.
13. In the result, the civil revision petition is disposed of. No costs.
Consequently, the connected miscellaneous petition is closed.
26.09.2024
Index : Yes / No
Speaking order : Yes / No
NCC : Yes / No
pal
To
1. The Subordinate Judge, Sankagiri.
2. The District Munsif cum Judicial Magistrate, Edappadi.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.,
pal
26.09.2024
https://www.mhc.tn.gov.in/judis
