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2013 DIGILAW 4252 (MAD)

Bumi Geo Engineering v. HDFC Bank

2013-12-20

K.KALYANASUNDARAM, M.JAICHANDREN

body2013
Judgment M. Jaichandren, J. 1. This Writ Petition has been filed praying that this Court may be pleased to issue a Writ of Certiorarified Mandamus, calling for and quashing the proceedings of the 2nd respondent, made in O.A.No.12 of 2013, dated 30.5.2013 and 26.8.2013, and consequently directing the respondents to return the commercial equipment, viz., CASAGRANDE PILING RIG – TYPE B 250 Hydraulic, to the petitioner. 2. The facts of the case are that the petitioner availed a loan from the 1st respondent-bank, to the tune of Rs.3,75,00,000/-, for the purchase of the above mentioned commercial equipment. Since the petitioner had defaulted in the repayment of the loan, an application, in O.A.No.12 of 2013, had been filed by the 1st respondent-bank, before the Debts Recovery Tribunal-II, Chennai, for appointment of an Advocate Commissioner, to seize and deliver the said commercial equipment. 3. The main contention of the learned counsel appearing for the petitioner is that, though the application, in O.A.No.12 of 2013, had been originally directed to be listed, on 4.9.2013, by the 2nd respondent-Tribunal, on the mention made by the learned counsel appearing for the 1st respondent-bank, the 2nd respondent-Tribunal had taken up the matter, on 26.8.2013, and extended the Warrant of Commission, till 4.9.2013, without affording an opportunity of hearing to the petitioner, to oppose the extension of time, for the execution of the Warrant of Commission. The specific contention of the learned counsel appearing for the petitioner is that, though the Warrant of Commission was not extended, by the 2nd respondent-Tribunal, from 6.7.2013 to 4.9.2013, the equipment in question had been seized, by the Advocate Commissioner, on 30.8.2013 at 9 a.m., despite the fact that the Warrant of Commission, granted in favour of the Advocate Commissioner, had been re-called by the 2nd respondent-Tribunal, by its order, dated 30.4.2013. In such circumstances, the petitioner has preferred this Writ petition, before this Court, under Article 226 of the Constitution of India. 4. We have heard the submissions made by the learned counsel appearing on behalf of the petitioner and perused the available records. We do not find any merit in the contentions raised by the learned counsel for the petitioner that the 2nd respondent-Tribunal ought not to have extended the Warrant of Commission, by the impugned proceedings, dated 26.8.2013. 4. We have heard the submissions made by the learned counsel appearing on behalf of the petitioner and perused the available records. We do not find any merit in the contentions raised by the learned counsel for the petitioner that the 2nd respondent-Tribunal ought not to have extended the Warrant of Commission, by the impugned proceedings, dated 26.8.2013. It is pertinent to note that the 2nd respondent-Tribunal, by its order, dated 30.5.2013, had re-called its earlier order, dated 30.4.2013, discharging the Advocate Commissioner. Subsequently, on 26.8.2013, the 2nd respondent-Tribunal had extended the time, for the execution of the Warrant of Commission granted in favour of the Advocate Commissioner. The order, dated 30.4.2013, discharging the Advocate Commissioner, was passed only on the ground that the petitioner had paid a sum of Rs.56 lakhs, as arrears of instalments. Subsequently, on 30.5.2013, it was brought to the notice of the 2nd respondent-Tribunal that the petitioner had not made further payments, either towards the arrears or towards the outstanding dues. Therefore, the order dated 30.4.2013, discharging the Advocate Commissioner, was re-called by the 2nd respondent-Tribunal, by its order, dated 30.5.2013. Thereafter, by the order of the 2nd respondent-Tribunal, dated 26.8.2013, the time for the execution of the Warrant of Commission, was extended till 4.9.2013. In these circumstances, we are not inclined to accept the contentions made on behalf of the petitioner. 5. In fact, the petitioner ought to have challenged the impugned proceedings, before the appropriate forum, as per the relevant provisions of the Recovery of Debts Due to Banks and Financial Institutions [Act 1998], if it is so advised. Therefore, it is not open to the petitioner to challenge the impugned proceedings of the 2nd respondent-Tribunal, by invoking the writ jurisdiction of this Court, under Article 226 of the Constitution of India. 6. In the result, the Writ Petition is dismissed, as not maintainable. No costs. M.P.Nos.1 and 2 are closed.