Madras High Court
M/S.Universal Shoe Company vs M/S.Canara Bank on 8 March, 2022
Bench: Munishwar Nath Bhandari, D.Bharatha Chakravarthy
W.P.No.5031 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.3.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.5031 of 2022
& WMP.Nos.5145 and 5148 of 2022
1.M/s.Universal Shoe company
2.V.Arshad Ahmed (Partner)
3.Kaka Arshiya Kauser (partner)
4.Kaka Md. Asrar .. Petitioners
vs
M/s.Canara Bank, rep.by its
Authorized Officer, Ambur Branch,
Vellore District. .. Respondent
Prayer: Petition filed under Article 226 of The Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus to call
for the records relating to Ref. E-Auction Sale Universal/2022/001
dated 16.02.2022 issued by the respondent, quash the same and
direct the respondent to regularize the account of the petitioner.
___________
Page 1 of 5
https://www.mhc.tn.gov.in/judis
W.P.No.5031 of 2022
For Petitioners : Ms.Thenmozhi Shiva
Perumal
ORDER
(Order of the Court was made by the Hon'ble Chief Justice) We have heard the learned counsel for the petitioners.
2. The writ petition has been filed challenging the e-auction notice dated 16.2.2022 issued by the respondent pursuant to the second possession notice, in view of the fact that the first possession notice was challenged by the petitioners before Debts Recovery Tribunal-I and thereupon an order was passed on 27.12.2019 in the following terms :
"IA 1391/2019 : Heard both sides. Petition is allowed. Matter is advanced to 27.12.2020. S.A. is taken up. Respondent bank filed a memo stating that settlement is in offing between applicant and respondent, however the possession notice challenged in the SA is blocking the settlement. Applicant reports no objection, for withdrawal of possession notice hence, the memo is ___________ Page 2 of 5 https://www.mhc.tn.gov.in/judis W.P.No.5031 of 2022 allowed. It is hereby ordered that possession notice dated 19.3.2019 stands withdrawn. However, ld. counsel for the applicant prayed for waiver of the possession notice charges. However, ld counsel for the respondent opposed for the same. However, taking into consideration, in the circumstances, 50% of the publication charges only are ordered to be debited to the borrower's account. This order does not preclude the respondent from issuing fresh possession notice and the borrower to contest the same if advised as per law."
3. The first possession notice was withdrawn for the reasons given in the order extracted above. As no final settlement could be arrived at, the respondent bank caused the second possession notice. However, it has not been challenged either before this Court or before the concerned DRT. Without challenging the second possession notice, the writ petition has been filed to challenge the e-auction notice whereas an appeal is maintainable against the second possession notice, which has not been done. ___________ Page 3 of 5 https://www.mhc.tn.gov.in/judis W.P.No.5031 of 2022
4. The reason assigned for not filing the appeal is stated to be Covid-19 pandemic, without clarifying as to whether the DRT concerned was functional or not in the intervening period. In fact, the DRT concerned was functional during the intervening period so as to challenge the possession notice and now it is time barred. Thus, an indirect way of challenge has been made by filing this writ petition, which is not maintainable in the absence of challenge to the possession notice because e-auction notice is pursuant to the second possession notice. Therefore, the challenge to the e-auction notice cannot be accepted.
5. Accordingly, the writ petition is dismissed. Consequently, the connected WMPs are also dismissed.
(M.N.B., CJ.) (D.B.C.J.)
08.3.2022
Index : Yes/No
To:
M/s.Canara Bank, rep.by its
Authorized Officer, Ambur Branch, Vellore District. RS ___________ Page 4 of 5 https://www.mhc.tn.gov.in/judis W.P.No.5031 of 2022 M.N.BHANDARI, CJ AND D.BHARATHA CHAKRAVARTHY,J RS W.P.No.5031 of 2022 & WMP.Nos.5145 and 5148 of 2022 08.3.2022 ___________ Page 5 of 5 https://www.mhc.tn.gov.in/judis