Madras High Court
C.Jeyachandra vs The Branch Manager on 31 March, 2018
Author: R.Subbiah
Bench: R.Subbiah, T.Krishnavalli
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 05.12.2018
DELIVERED ON : 21.12.2018
CORAM:
THE HON'BLE Mr. JUSTICE R.SUBBIAH
AND
THE HON'BLE Mrs. JUSTICE T.KRISHNAVALLI
W.P.(MD)No.11004 of 2015
and
M.P.(MD)No.1 of 2015 and W.M.P.(MD)No.15213 of 2016
C.Jeyachandra
... Petitioner
Vs.
1.The Branch Manager,
Syndicate Bank,
Neyyoor,
Kanyakumari District.
2.The Authorized Officer,
Syndicate Bank,
Nagercoil,
Kanyakumari District.
3.The District Collector,
Kanyakumari District,
Kanyakumari.
4.The Revenue Divisional Officer,
Pudhmanabhapuram,
Kanyakumari District.
... Respondents
PRAYER: The petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, calling for the records pertaining to
the proceedings bearing Ref.No.076/6180/DDS/ REC, dated 31.03.2018 of the
first respondent and quash the same and consequently direct the respondents
to hand over the movables (gold jewels) as per the Panchanama drawn on
http://www.judis.nic.in
02.12.2011 to the petitioner.
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For Petitioner : Mr.Jayesh B.Dolia for
For Respondents : Mr.R.Pandivel for R1 and R2
Mr.V.R.Shanmuganathan, Spl.G.P. for R3 & 4
ORDER
R.SUBBIAH,J.
This Writ petition has been filed to issue a Writ of Certiorarified Mandamus, to quash the proceedings bearing Ref.No.076/6180/DDS/ REC, dated 31.03.2018 passed by the first respondent and consequently direct the respondents to hand over the movables (gold jewels) as per the Panchanama drawn on 02.12.2011 to the petitioner.
2.The case of the petitioner is that he has borrowed loan from the 1st respondent / Bank. Due to non payment of the said loan, the respondents 1 and 2 initiated action under SARFAESI Act, by issuing a demand notice dated 27.08.2007 under Section 13(2) of the Act. Thereafter, on 20.11.2007, the 2nd respondent issued possession notice, without publishing the same in two newspapers within a period of 7 days. Hence, the petitioner has filed an appeal in S.A.No.10 of 2008 before the Debts Recovery Tribunal, Madurai, challenging such possession notice. However, the same has been dismissed by the Debts Recovery Tribunal on 23.12.2010. As against which, the petitioner preferred an appeal in A.I.R.No.107 of 2011 before the Debts Recovery Appellate Tribunal, Chennai and the same is allowed, remitting the http://www.judis.nic.in 3 matter back to the Debts Recovery Tribunal, Madurai for fresh consideration. Pending the appeal in S.A.No.10 of 2008, the 2nd respondent brought the petitioner’s property for auction by issuing sale notice. Such sale notice has been stayed by the Debts Recovery Tribunal on condition that the petitioner should deposit a sum of Rs.7.5 lakhs. Since the petitioner has failed to comply with the said condition, S.A.No.10 of 2008 has been dismissed and thereafter, the 2nd respondent has brought the property for sale by publishing sale notice on 13.06.2011. Challenging the same, the petitioner has filed another S.A.No.164 of 2011 before the Debts Recovery Tribunal, Madurai on various grounds and the same is pending.
3.While so, the 2nd respondent has sold the property in a public auction. Thereafter, the respondents 1 and 2 while approaching the respondents 3 and 4 to take physical possession obtained an order dated 02.12.2011. At the time of effecting physical possession of the immovable property, the 4th respondent took inventory of movables including gold jewels by drawing Panchanama and asked the petitioner to take back the custody of the movables. According to the petitioner, since he was not having safe place to store the said jewels, he refused to take back the same. Therefore, the 4th respondent handed over the movables to the respondents 1 and 2 and also effected telegram to the petitioner to take back such movables from the respondents 1 and 2. Further, the respondents 1 and 2 vide letters dated http://www.judis.nic.in 4 06.12.2011, 20.12.2011 and 03.02.2011 informed to the petitioner to take back the jewels as per the Panchanama list.
4.The grievance of the petitioner is that on 18.02.2015 when he has sent a letter dated 18.02.2015 to the respondents for returning the movables as per the Panchanama list, the 1st respondent vide proceedings dated 31.03.2015 refused to return the movables stating that the same have been hypothecated to the Bank. Aggrieved over the same, the petitioner is before this Court with the present Writ petition for the aforesaid relief.
5.The respondents 1 and 2 by filing a counter affidavit stated that the gold jewels have been hypothecated to the Bank under the composite hypothecation agreement. Further, due to oversight, the respondents / Bank have sent letters to the petitioner to take back the jewels. However, when the composite hypothecation agreement, executed by the petitioner has not been discharged by him, the letter sent by the respondents / Bank will not amount to any estoppel. Since the respondents / Bank have proceeded only against the immovable under the Act and having possession as per the composite hypothecation agreement, the hypothecated jewels have not been mentioned in the SARFAESI notice. Though the hypothecated jewels have been taken possession in the year 2011, the petitioner has questioned such possession only in the year 2015 for the reason best known to him. Contending as above, the respondents / Bank prayed for dismissal of this Writ petition. http://www.judis.nic.in 5
6.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for R1 and R2 and also the learned Special Government Pleader appearing for R3 and R4.
7.It is an admitted fact that the respondents 1 and 2 vide letters dated 06.12.2011, 20.12.2011 and 03.02.2012 asked the petitioner to take back the movables available as per the Panchanama dated 02.12.2011. It is also an admitted fact that the petitioner has executed a composite hypothecation agreement for the said jewels. Based on the said agreement, the 1st respondent / Bank has passed the impugned proceedings dated 31.03.2015 stating that the gold jewels are hypothecated to the Bank as per the composite hypothecation agreement executed by the petitioner. It is seen that the petitioner in his affidavit has not mentioned anything with regard to the said composite hypothecation agreement, but, however, the petitioner by indicating the above said letters dated 06.12.2011, 20.12.2011 and 03.02.2012 sent by the respondents 1 and 2 tried to create an impression as if the jewels which are in possession of the respondents have nothing to do with the loan transaction, whereas the fact remains that there is a hypothecation agreement in respect of the said gold jewels. Taking advantage of such letters, without discharging the composite hypothecation agreement executed by him, absolutely the petitioner has no right to claim any right over the gold jewels.
http://www.judis.nic.in 6
8.In such a situation, we do not find any merit in this Writ petition. Accordingly, this Writ petition is dismissed. No costs. Consequently, connected M.P.and W.M.P.are closed.
[R.P.S., J.] [T.K., J.]
21.12.2018
Index: Yes/No
Internet: Yes/No
nbj
To
1.The District Collector,
Kanyakumari District,
Kanyakumari.
2.The Revenue Divisional Officer,
Pudhmanabhapuram,
Kanyakumari District.
http://www.judis.nic.in
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R.SUBBIAH,J.
AND
T.KRISHNAVALLI,J.
nbj
Pre-Delivery order made
in
W.P.(MD)No.11004 of 2015
21.12.2018
http://www.judis.nic.in