Madras High Court
A.Subramanian (Died) vs The Authorised Officer on 7 July, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.07.2015
Coram
THE HONOURABLE Mr.JUSTICE S.MANIKUMAR
and
THE HONOURABLE Mr.JUSTICE G.CHOCKALINGAM
Writ Petition (MD)No.11440 of 2012
and
M.P.(MD)Nos.2and 3 of 2012
A.Subramanian (Died) ... Petitioner
1.S.Gandhimathi, W/o.A.Subramanian
2.S.Chitra, D/o.A.Subramanian ... Petitioners
1&2
(Petitioners 1 and 2 are substituted in the place of original
petitioner as per order, dated 07.07.2015, made in
MP(MD)No.1 of 2014 )
vs.
1.The Authorised Officer,
Secured Assets Recovery Branch,
State Bank of India,
Administrative Unit 1st Floor,
Mac Donald Road,
Tiruchirappalli-620 001. ... Respondent
Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of a writ of certiorari, calling for the records
pertaining to the proceeding initiated by the respondent bank under SARFAESI
Act, against the petitioner, ending up with its demand notice, dated
06.06.2012 and quashing the same.
!For Petitioners : Mr.J.Maria Roseline
For Respondent : Mr.S.Sethuraman
:ORDER
(Order of the Court was made by S.MANIKUMAR,J) Impugned Notice, dated 06.06.2012, is a substituted service issued under Rule 3(1) of the Security Interest (Enforcement) Rules, 2002, of the Demand Notice issued under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short ?SARFAESI Act?), is put to challenge in this writ petition.
2.According to the petitioner, one Mr.S.M.R.Natarajan, Proprietor of M/s.Apsara Lady Wear, had borrowed a sum of Rs.1,75,000/- from the respondent bank, mortgaging as many as 26 items of properties, as security, for the above said loan. The petitioner stood as a guarantor for the said loan. It is his further case that a suit in O.S.No.1065 of 1993, on the file of learned Subordiante Judge, Tiruchirappalli, was filed by the respondent bank against the borrower and the petitioner, for recovery of a sum of Rs.4,98,423.91 and obtained a preliminary decree for the said amount. Subsequently, the respondent bank obtained a final decree on 15.05.2001 and filed an Execution Petition in E.P.No.119/2002 for recovery of a sum of Rs.12,17,260/-, in which the petitioner's property was shown as Item No.27. The petitioner has filed E.A.No.191/2006 in E.P.No.119/2002, praying for a direction to the respondent bank to first sell the properties of the borrower i.e. Item Nos.1 to 26 and in the event of non satisfaction of debts, to bring the petitioner's property for sale and that the said application was ordered, as early as on 07.01.2008. It is the grievance of the petitioner that inspite of the order passed by the competent civil court, the respondent bank is trying to bring the property of the petitioner for auction, without proceeding against the properties of the borrower.
3.Though Mrs.J.Maria Roseline, learned counsel for the petitioner submitted that the Authorised Officer, Secured Assets Recovery Branch, State Bank of India, Tiruchirappalli-1, has failed to consider that the bank has already filed a suit in O.S.No.1065 of 1993 on the file of the learned Subordinate Judge, Tiruchirappalli, for recovery of amount, due under the mortgage and obtained a decree and pending execution of the said decree, it is not open to the respondent bank to issue the notice under Section 13(2) of SARFAESI Act and that too, when the petitioner has obtained an order in E.A.No.191 of 2006, this Court is not inclined to advert to the same in this writ petition. What is impugned in the present writ petition is only substituted service, effected by the bank, under Rule 3(1) of the Security Interest (Enforcement) Rules, 2002. Writ Petition challenging notice under Rule 3(1) of the Security Interest (Enforcement) Rules, 2002 is not maintainable.
4.Though Mrs.J.Maria Roseline, learned counsel for the petitioner submitted that the suit is of the year 1993, earlier to the proceedings proceedings initiated under SARFAESI Act, and the Authorised Officer has failed to take note of, as the writ petition itself is not maintainable, we are not inclined to delve into the same, as alternative remedy is available in the Act, to challenge any action by the Bank.
5.The writ petition is dismissed. No order as to costs.
Connected miscellaneous petitions are also dismissed.
.