Madras High Court
M/S.Ipac Paper Boards (India) Private ... vs The District Collector And District ... on 18 December, 2018
Author: R.Subbiah
Bench: R.Subbiah, R.Tharani
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HONOURABLE MRS.JUSTICE R.THARANI
W.P(MD)No.6873 of 2017
and
W.M.P(MD)Nos.5433 and 5434 of 2017
M/s.IPAC Paper Boards (India) Private Limited,
5th Km., Bathalagundu Road,
Pithataipatty Post,
Dindigul – 624 002.
represented by its
Director,
Dhamodaran ... Petitioner
Vs.
1.The District Collector and District Magistrate,
Dindigul District,
Dindigul.
2.The Assistant Collector,
Dindigul,
Dindigul District.
3.The Tahsildar,
Aathoor Taluk,
Dindigul District.
4.The Authorised Officer,
Kotak Mahindra Bank Limited,
2nd Floor, Ceebros Centre,
39, Montieth Road,
Chennai – 600 008. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India,
praying for issuance of a writ of Certiorari to call for the records
pertaining to the impugned order passed by the first respondent in
ROC.No.29938/2016/C4, dated 15.03.2017 and quash the same.
http://www.judis.nic.in
2
For Petitioner : Mr.D.Sadiq Raja
For Respondents : Mr.R.Sethuraman
Special Government Pleader for R.1 to R.3
Mr.Ohm Prakash
Senior Counsel
for Mr.Pala.Ramasamy for R.4
*****
ORDER
[Order of this Court was made by R.SUBBIAH,J.] This writ petition has been filed seeking a writ of Certiorari to call for the records pertaining to the impugned order passed by the first respondent in ROC.No.29938/2016/C4, dated 15.03.2017 and quash the same.
2. It is the case of the petitioner that the petitioner Company availed credit facilities from the fourth respondent bank in the year 2012 and two items of properties were given as security in respect of the loan availed by the petitioner Company. Due to recession in the industry, the petitioner could not pay the monthly installments in time and hence, the account was classified as Non-Performing Asset and demand notice was issued on 26.02.2014, directing the petitioner Company to pay a sum of Rs.7,80,52,649.67. Thereafter, possession notice was also issued on 10.11.2014 in respect of the http://www.judis.nic.in guarantor's property in Sl.No.2 of the schedule mentioned 3 properties. Challenging the same, the petitioner Company has filed appropriate application before the Debts Recovery Tribunal under the SARFAESI Act and they are pending. Meanwhile, in respect of Sl.No.1 of the schedule mentioned properties, a notice under Section 13(2) of the SARFAESI Act, dated 26.02.2014, came to be issued, followed by a possession notice under Section 14 of the SARFAESI Act, issued by the fourth respondent on 14.07.2016. The petitioner Company was negotiating with the fourth respondent bank for settling the entire issue. However, the first respondent passed the impugned order dated 15.03.2017 directing the second respondent to take possession of the property in question and hand over the possession of the secured assets to the fourth respondent bank. Aggrieved thereby, the present writ petition has been filed.
3. When the matter is taken up for hearing, the learned Counsel for the petitioner, inviting the attention of this Court to various earlier orders passed by this Court, submitted that a proposal was mooted out to settle the matter and it is also in progress and therefore, if further time is granted by this Court, they would settle the matter.
4. Per contra, the learned Senior Counsel appearing for the fourth respondent bank, on instructions, submitted that under the http://www.judis.nic.in 4 guise of settlement, the petitioner is prolonging the matter and thus, he sought for the dismissal of this writ petition.
5. Heard the submissions of the learned Counsel for the parties and perused the materials available on record.
6. In the recent judgment of the Honourable Supreme Court dated 05.10.2018 in ICICI Bank Limited v. Umakanta Mohapatra, Civil Appeal Nos.10251 – 10265 of 2018 arising out of SLP(C)Nos.16758 – 16772 of 2015, it is held as follows:
"Despite several judgments of this court, including a judgment by Hon'ble Mr.Justice Navin Sinha, as recently as on 30.01.2018, in Authorized Officer, State Bank of Travancore and Anr., vs. Mathew K.C., (2018) 3 SCC 85, the High Courts continue to entertain matters which arise under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non-Performing Assets (NPAs).
The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows:-
18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd., vs. Prem Heavy http://www.judis.nic.in 5 Engineering Works (P) Ltd., and Another, (1997) 6 SCC 450, observing:-
"32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."
The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside."
7. In view of the recent judgment of the Honourable Supreme Court, we are of the opinion that the present writ petition is not maintainable and the appropriate remedy available for the petitioner is to file an application before the Debt Recovery Tribunal and thus, the present writ petition fails.
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8. In the result, this writ petition stands dismissed, however, granting liberty to the petitioner to file an application before the Debt Recovery Tribunal in accordance with law. No costs. Consequently, W.M.P(MD)Nos.5433 and 5434 of 2017 are closed.
Index :Yes/No (R.P.S.,J.) (R.T.,J.)
Internet :Yes/No 18.12.2018
rsb
To
1.The District Collector and District Magistrate, Dindigul District, Dindigul.
2.The Assistant Collector, Dindigul, Dindigul District.
3.The Tahsildar, Aathoor Taluk, Dindigul District.
http://www.judis.nic.in 7 R.SUBBIAH,J.
AND R.THARANI,J.
rsb W.P(MD)No.6873 of 2017 and W.M.P(MD)Nos.5433 and 5434 of 2017 18.12.2018 http://www.judis.nic.in