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20. After the suit was decreed the plaintiff S.R.Ratheesh had filed E.P.No.4 of 2016, wherein the defendant V.S.Rethinakumari had filed counter and had raised various grounds. The defendant had brought to the knowledge of the EP Court that the Government had issued G.O.Ms.No.872 Home (Police XIX Department) dated 12.11.2012 under TANPID Act and attached all the properties including the EP schedule property. But the EP Court had failed to consider the said G.O. It is pertinent to state herein that the Judgment and Decree passed in O.S.No. 106 of 2011 was on 12.08.2015, but the G.O.Ms.No.872 was passed for attaching all https://www.mhc.tn.gov.in/judis C.R.P.(MD)Nos.2518 of 2024 and its batch the properties including the EP schedule property was on 12.11.2012 and hence the attachment through G.O. is more than two and half years prior to the decree. Infact it is the contention of the defendant that before passing the judgment in the suit the said G.O.Ms.No.872 was brought to the knowledge of the Trial Court itself, but the Trial Court had just brushed aside. As stated supra, this Court is of the considered opinion, the Trial Court ought to have transferred the suit to the TNPID Court since the Civil Court jurisdiction is ousted once the case is seized in the TNPID Court. The Civil Court ought to have avoided the complication which it had created in the present case. Since this Court had held that the Civil Court had no jurisdiction, then the decree passed in O.S.No.106 of 2011 is nullity in law. If so, the sale automatically ought to be set aside.
https://www.mhc.tn.gov.in/judis C.R.P.(MD)Nos.2518 of 2024 and its batch
24. Infact this Court is of the considered opinion that the auction purchaser Robert Raj had “an eye on the property”, hence he had exercised undue influence to grab the property. This is evident from the fact that the auction purchaser is one of the decree holders in another suit in O.S.No.21 of 2010 on the file of the District Court, Kanyakumari and had filed E.P.No.90 of 2010, thereby seeking to take the amount of Rs.2,50,00,000/- from the sale amount of Rs.4,50,10,000/-. Even though the Learned Counsel appearing for the auction purchaser tried to convince this Court by stating that the said suit in O.S.No.21 of 2010 was filed by Robert Raj’s father. But this Court is of the considered opinion that the said contention is not convincing because of several other actions and attitude of the auction purchaser. As rightly pointed out by the defendant the sale of entire property itself was conducted only to favour the present auction purchaser and to favour the father of the auction purchaser who is the decree holder in another suit in O.S.No.21 of 2010 and the father & the son was well aware of the entire transaction and the fact that the properties are under attachment under TNPID Act. Infact the subsequent purchaser had shown some hastiness in purchasing the property. And also demolished the building without obtaining clearance to demolition and without obtaining patta and the period for revision was not over. It is pertinent to state that the building was strong and there is no necessity to demolish the building at all. Further the auction https://www.mhc.tn.gov.in/judis C.R.P.(MD)Nos.2518 of 2024 and its batch purchaser had demolished the huge construction without getting clearance from the Competent Authority who is having possession of the property under G.O.Ms.No.
872. It is pertinent to state that the auction purchaser had stated in the counter that it is not necessary to implead the Competent Authority under TNPID Act and the Inspector of Police EOW. Further the subsequent purchaser the denied the G.O.Ms.No.872 and also denied the property was vested with DRO. The auction purchaser had raised such plea so that the property can be easily usurped. But when the Government had attached the impugned property under statutory provisions, the above contention in the counter again shows the attitude of the auction purchaser to usurp the property. Infact this Court is at loss to see such counters. The attitude of the auction purchaser would clearly indicate that the auction purchaser has an eye on the property and is bend upon to grab the property at lesser price. Therefore, this Court is of the considered opinion that the EP Court failed in its statutory and mandatory duty, the hastiness in selling the property had created some cloud on the transaction and also had caused severe / serious injury to the defendant, hence the impugned sale is liable to be set aside. Also based on the provisions of Order 21 Rules 64, 66 and 90 and by following the judgements of Hon’ble Supreme Court rendered in Balakrishnan Vs. Malaiyandi Konar and S. Mariyappa Vs. Siddappa (stated supra) this Court is of the considered opinion that the impugned sale had caused serious https://www.mhc.tn.gov.in/judis C.R.P.(MD)Nos.2518 of 2024 and its batch injury to the defendant / judgment debtor and hence the sale is liable to be set aside and accordingly set aside.
29. The Learned Counsel appearing for the auction purchaser submitted that the ABJ was granted before the attachment under TNPID Act and the ABJ would prevail over the attachment. This contention cannot be accepted since the ABJ is only an interim order. But the attachment under TNPID Act is statutory attachment under Special Act and the said attachment would prevail over the ABJ attachment.
30. The next contention of the defendant is that the property would fetch Rs.32 crores and the distress sale (forced sale) would be Rs.28 crores and had submitted the valuation report of a private valuer. Further stated that the Competent Authority had also issued paper publication for public auction wherein the market value of the property along with the building and trees was quoted as Rs. 19,53,61,737/-, but the property was sold to Rs.4,50,10,000/-. The said contention was opposed by the Learned Counsel appearing for the auction purchaser and submitted that the guideline value for the property is only Rs.4.50 crores only, even in the same paper publication the guideline value is quoted as Rs.4,43,73,912/- only and the auction purchaser had paid seven lakhs more for the said property, hence the sale value of the property is correct, the same cannot be interfered with. After hearing the rival submission, the crucial question that arises is whether the upset price ought to be fixed based on guideline value or based on market value. In the present case, it https://www.mhc.tn.gov.in/judis C.R.P.(MD)Nos.2518 of 2024 and its batch is an admitted fact that the sale was by fixing guideline value. The concept of sale of property by fixing market value to satisfy the decree needs serious and strict guidelines. If any person intends to sell the property, he would sell the same for market value only and not guideline value. It is an open secret the guideline value is lesser than the market value. At times the market value is four or five times more than the guideline value. Hence, the Courts are expected to sell the property as if the owner is selling the property and the Courts are expected to take all parameters to sell the property for market value only and not guideline value. Infact the valuation report should indicate both guideline value and market value and also, the report should indicate the distressed sale value (forced sale value) in market value of the property. If any property is not sold for market value, then the debtor would be seriously prejudiced and injured. Already the debtor would be in distress based on the decree, if the property is not sold for market value, then the Court would be inflicting the distress further, which would be against the rule of law. The Courts cannot do any forced distress sale of the judgement debtor’s property that too by fixing guideline value. Infact by forced distress sale through guideline value the purchaser of property would be put in more advantageous position, which is the creation by wrong approach of the concerned authorities and Courts. Further if the property is not fetching proper value, then the Courts have right and duty to divide https://www.mhc.tn.gov.in/judis C.R.P.(MD)Nos.2518 of 2024 and its batch the property and sell a portion of the property to satisfy the decree. As held supra, in the present case the Court had not even thought to divide and sell a portion of the property, rather accepted the contention of the auction purchaser the property is indivisible and further held it is the duty of the defendant to show the property is divisible. The relevant portion is already extracted in previous paragraph of this judgment. The EP Court had forgotten that it is duty cast on the Court to ascertain the property is divisible or not. Therefore, the reasoning of the EP Court that the defendant had not submitted any evidence to show that the property is divisible is erroneous and totally non-application of mind. When the Court failed to exercise the option to sell the portion of the property, substantial injury is caused to the defendant / judgement debtor as held in the judgment rendered by the Hon’ble Supreme Court in Desh Bandhu Gupta Vs. N.L.Anand & Rajinder Singh reported in (1994) 1 SCC 131, wherein it is held in paragraph 17 of the said judgment that the non-application of the mind whether sale of a part of the property would satisfy the decree debt is a material irregularity doing substantial injury to the appellant attracting Order 21 Rule