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2012 DIGILAW 3412 (MAD)

S. K. R. Devaraj v. Authorised Officer

2012-08-01

D.MURUGESAN, K.K.SASIDHARAN

body2012
Judgment :- D. MURUGESAN, J. 1. The petitioner has approached this court with the grievance that M/s.Vetrivel Enterprises represented by the second respondent had availed certain loans from the respondent bank. Sometime during July 2011, one Thiru.Anburaj, Thiru.Rangaraj and his wife Premalatha came to the residence of the petitioner. The said Anburaj and others impressed the petitioner that arrangement would be made for a loan with the said Vetrivel Enterprises. Believing their words, the petitioner, alongwith his friend one Muthukumar, accompanied the said Anburaj and Rangaraj alongwith the copies of the title deeds and on the promise that they will arrange for the loans, they were made to execute certain documents purported to be agreement of guarantee, memorandum of deposit of title deeds and also letter of acknowledgment of debt and security for the loan availed by M/s.Vetrivel Enterprises. However, he was not paid any amount. Thereafter, a demand notice dated 16.11.2011 was issued to the petitioner followed by the possession notice dated 16.2.2012 and also a sale notice dated 13.3.2012 for the loan availed by M/s.Vetrivel Enterprises. 2. On coming to know that fraud has been played and the petitioner was made to execute the documents, he lodged a complaint which is pending. In the meantime, the petitioner also filed S.A.No.49 of 2012 challenging the demand notice dated 16.11.2011, possession notice dated 16.2.2012 and tender cum auction notice dated 13.3.2012 on the ground that they are ab initio void and they are tainted with fraud and misrepresentation. 3. It appears that pending the above S.A., while granting interim order, the Debts Recovery Tribunal directed the petitioner to deposit a sum of Rs.10,00,000/= every month. The condition regarding payment of Rs.10,00,000/= has been complied for the first month. On the other hand, condition of payment relating to the succeeding months had not been complied. Being aggrieved by such conditions, the petitioner approached this court by way of the present writ petition challenging the sale notice. 4. When the writ petition came up for admission on 13.7.2012, having considered that the loan was granted on 9.6.2011 and the title deeds were deposited by the petitioner on 22.7.2011 and the demand notice was issued on 16.11.2011 i.e., within a period of five months, interim order was granted. 5. At the time the miscellaneous petition is listed for hearing, by consent, the writ petition itself is taken up for disposal. 5. At the time the miscellaneous petition is listed for hearing, by consent, the writ petition itself is taken up for disposal. We have heard Ms.Ananda Gomathy Sivakumar, learned counsel for the petitioner and Mr.M.S.Krishnan, Senior Counsel for the first respondent. 6. On the one hand, it is the contention of the learned counsel for the petitioner that a fraud has been played on the petitioner whereby he has been made to execute certain documents purported to be agreement of guarantee, memorandum of deposit of title deeds and also letter of acknowledgment of debt and security for the loan availed by M/s.Vetrivel Enterprises and especially those documents were executed on the promise of one Anburaj and others that they will arrange the loan to the petitioner. 7. On the other hand, Mr.M.S.Krishnan, learned Senior Counsel for the first respondent has brought to our notice, by way of referring some documents filed in additional typed set of papers filed by the respondent bank, that the petitioner was very well aware of the loan availed by M/s.Vetrivel Enterprises and he executed the mortgage deed by deposit of title deeds fully knowing the above and the grievance that fraud had been played was only an after thought. Moreover, when the very same sale notice has been questioned by the petitioner before the Debt Recovery Tribunal and the S.A. is still pending and the condition imposed for grant of interim order has not been complied, the petitioner has approached this court only to avoid the compliance of conditions imposed by the Debts Recovery Tribunal. 8. The learned Senior Counsel would submit that it is only proper for the petitioner to pursue his remedy in the SARFAESI proceedings pending before the Debts Recovery Tribunal rather than invoking the jurisdiction of this court under Article 226 of the Constitution of India wherein disputed questions of fact are involved. 9. We have considered the above submissions. In our opinion, having regard to the rival contentions and contradictory stands as to whether fraud had been played or not and the said issue cannot be considered in a writ petition particularly, when the petitioner had already approached with the same grounds before the Debts Recovery Tribunal and the S.A. filed by the petitioner is still pending, this writ petition cannot be entertained. 10. 10. In response to the submission made by the learned Senior Counsel for the respondent, Ms.Ananda Gomathy Sivakumar, learned counsel for the petitioner would submit that as the condition to make payment of Rs.1,00,000/= for each month for grant of interim order would be onerous and the remedy of appeal would not be effective where the petitioner should make pre deposit, the petitioner has approached this court by way of the present writ petition. 11. Whatever be the grievance, in order to give a quietus to the issue, it would only be proper for this court to allow the petitioner to prosecute the application filed by the petitioner in S.A.No.49 of 2012 which is pending before the Debts Recovery Tribunal, Coimbatore. As far as the order of interim stay is concerned, in our opinion the direction for payment of Rs.10,00,000/= for each month would be of course onerous. Nevertheless, pursuant to the said interim order, no sale has been taken place on the scheduled date and the respondent bank should issue only fresh sale notice. Hence, we direct that the interim order would continue for a period of two months i.e., upto 3rd October 2012 and in the meantime, the Debts Recovery Tribunal shall dispose of the appeal in one way or the other. 12. We make it clear that this indulgence is shown to the petitioner only by taking into consideration the condition of deposit of Rs.10,00,000/= for each month and if the S.A., is not disposed of expeditiously as possible, then the petitioner may be forced to deposit the entire amount demanded by the respondent bank. 13. In fact, the learned Senior Counsel appearing for the respondent has fairly submitted that in the event the Debt Recovery Tribunal disposes of the S.A. in a period of two months, the bank will not proceed with the sale in the meantime. In fact, the learned Senior Counsel for the respondent has submitted that the S.A., pending before the Debts Recovery Tribunal, can be disposed of within a period of two months. Considering the above submissions and particularly taking note that we have granted interim order and the Debts Recovery Tribunal also granted interim stay subject to the payment of Rs.10,00,000/= for the first month, the said order shall continue till the disposal of the S.A. as directed by this court on or before 3rd October 2012. Considering the above submissions and particularly taking note that we have granted interim order and the Debts Recovery Tribunal also granted interim stay subject to the payment of Rs.10,00,000/= for the first month, the said order shall continue till the disposal of the S.A. as directed by this court on or before 3rd October 2012. We make it clear that both the petitioner and the respondent bank shall co-operate with the Debts Recovery Tribunal, Coimbatore for compliance of this order. 14. We further make it clear that in the event the said S.A. could not be disposed of as stated in this order within the prescribed period, it is for the respondent bank to proceed with the sale notice. By this order, we have not expressed any opinion on the rival contentions. The writ petition is disposed of. No costs. The connected miscellaneous petition is closed.