Madras High Court
T.Kanagarajan vs The Authorized Officer on 29 June, 2015
Bench: S.Manikumar, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 29.06.2015 CORAM THE HON'BLE Mr. JUSTICE S.MANIKUMAR AND THE HON'BLE Ms. JUSTICE V.M.VELUMANI W.P.(MD)No.10630 of 2015 & M.P.(MD) Nos.1 and 2 of 2015 T.Kanagarajan .. Petitioner vs. The Authorized Officer, UCO Bank, No.730, P.K.S.A. Arumugam Road, Sivakasi - 626 123, Virudhunagar District. ... Respondent Petition filed under Article 226 of the constitution of India to issue a Writ of Certiorari, calling for the records pertaining to the impugned order, dated 10.06.2015, in daily newspaper Indian Express, issued by the respondent and quash the same as illegal. !For Petitioner ... Mr.R.Venkatesan ^ :ORDER
(Order of the Court was made by V.M.VELUMANI, J.) The petitioner has filed the present writ petition, challenging the sale notice, dated 10.06.2015, issued by the respondent Bank.
2. As per the averments, the petitioner has borrowed a sum of Rs.6,00,000/- from the respondent Bank, in the year 2012, for developing KJP Enterprises at Sivakasi. He was paying the amounts regularly upto 2014 and thereafter, he has defaulted in payment of the amounts, as he suffered loss in the business in the year 2014. The respondent Bank issued a notice under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [hereinafter referred to as "the SARFAESI Act"], for taking possession and publish the same in the newspaper, mentioning the total amount due at Rs.7,14,519/-.
3. According to the petitioner, the value of the property mentioned in the possession notice, dated 14.08.2014, is more than Rs.25 lakhs and it is his dwelling house. Subsequently, the petitioner has paid a sum of Rs.10,000/- on 03.09.2014 and Rs.5,000/- on 16.09.2014 and filed an application before the Debts Recovery Tribunal, challenging the possession notice, with a petition to condone the delay. The Debts Recovery Tribunal has issued a notice to the respondent and posted the case to 22.07.2015. Thereafter, the respondent Bank has filed a suit in O.S.No.44 of 2015, on the file of the Sub-Court, Sivakasi, for the same issue.
4. The respondent Bank has issued a sale notice in a daily newspaper on 10.06.2015, fixing the date of auction as 22.07.2015. Challenging the said sale notice, the petitioner has filed the present writ petition.
5. Mr.R.Venkatesan, learned counsel for the petitioner has contended that the account of the petitioner ought not to have been determined as a non-performing asset, as he has paid the amount, even after possession notice. The Hon'ble Apex Court has dealt with a case regarding non- performance asset, in a case reported in 2004 (4) SCC 311 [Mardia Chemicals Ltd. and others Vs. Union of India and others]. According to the petitioner, as per the ratio laid down in the said Judgment, the account of the petitioner ought not to have been determined as a non-performing asset. The property in question is only a dwelling house. Right to shelter is a constitutional right as per Article 21 of the Constitution of India. The respondent did not send sale notice to the petitioner, but effected only paper publication, which is contrary to the provisions of the SARFAESI Act. For the reasons stated above, the learned counsel for the petitioner prayed for quashing of sale notice.
6. The present writ petition is not maintainable, as the petitioner has already challenged the possession notice before the Debts Recovery Tribunal and the same is stated to be pending. The respondent has filed O.S.No.44 of 2015 on the file of Sub-Court, Sivakasi, for the same relief. Proceedings taken under the SARFAESI Act, cannot be challenged in writ proceedings. This issue has already been decided by Hon'ble Apex Court in the Judgment reported in 2011 (2) SCC 782 [Kanaiyalal Lalchand Sachdev and others Vs. State of Maharashtra and others].
7. In view of the pendency of the application, challenging the possession notice, before the Debts Recovery Tribunal and the pendency of the suit in O.S.No.44 of 2015 and the decisions rendered by the Hon'ble Apex Court, this Court is of the view that the writ petition is not maintainable and the same is dismissed. However, it is open to the parties to work out the remedy under Section 17 of the SARFAESI Act. No costs. Consequently, connected miscellaneous petitions are dismissed.
To The Authorized Officer, UCO Bank, No.730, P.K.S.A. Arumugam Road, Sivakasi - 626 123, Virudhunagar District.
W.P.(MD)No.10630 of 2015& M.P.(MD) Nos.1 and 2 of 2015 29.06.2015