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2014 DIGILAW 248 (MAD)

D. Masilamani v. Recovery Officer

2014-02-03

K.KALYANASUNDARAM, M.JAICHANDREN

body2014
Judgment K. Kalyanasundaram, J. 1. This writ petition is filed, praying for a Writ of mandamus, to direct the first and second respondents to grant eight weeks' time, to pay the balance due amount, payable to the 2nd respondent, in RP No.1/2013 in DRC No.1/2013, dated 1.1.2013, in O.A.No.5/2011, on the file of the first respondent. 2. The case of the petitioner is that the house bearing Door No.20, M.T.H. Road, Villivakkam, Chennai-49, originally belonged to his mother-in-law Mrs. Saraswathi Ammal; she had executed a 'Will' in favour of her daughter - the fourth respondent herein, but subsequently, she cancelled the 'Will' and executed another 'Will' in his favour. The said Saraswathi Ammal died, on 9.10.1992 and so, as per the Will, he became the owner of the property and he is in possession and enjoyment of the same. 3. The further case of the petitioner is that the third respondent is his daughter; the fourth respondent, who is the mother of the third respondent, availed educational loan from the State Bank of India, Coimbatore, Branch, by mortgaging the said property, but later she did not repay the loan amount. So, the bank initiated recovery proceedings, in O.A.No.5 of 2011, before the Debts Recovery Tribunal, and on the basis of the decree in the O.A., the bank brought the property for auction. The petitioner approached the bank to redeem the property, by repaying the entire dues to the bank. He had paid part of the decree amount and for repaying the balance amount, he sought for extension of time, which was not favourably considered. Hence, the writ petition. 4. The fourth respondent filed her counter stating that the property in dispute originally belonged to her mother Mrs. Saraswathi Ammal and she settled the property in her favour, by a Settlement deed, dated 10.2.1987, thereby she became the absolute owner of the property; that in a proceedings, in O.P.No.34 of 1989, on the file of the Principal Family Court, Chennai, her marriage with the petitioner was dissolved, by a decree of divorce, dated 22.7.1989; that the petitioner, on the basis of a forged 'Will', said to have been executed by her mother Saraswathi Ammal, entered into the property and he has been squatting on the property, with a view to grab the property, by illegal means. It is further categorically stated that the petitioner is neither a borrower nor the owner of the property and moreover, the marriage between herself and the petitioner was dissolved, by a decree of divorce, dated 22.7.1989, and therefore, the petitioner has no right to redeem the property by repaying the loan amount. Accordingly, the fourth respondent prayed for the dismissal of the writ petition. 5. Heard Mr. P.T. Perumal, learned counsel for Mr. M. Prabakar, appearing on behalf of the petitioner, Mr. P.D. Audikesavalu, learned counsel, appearing on behalf of the second respondent and Mr. G. Desigu, learned counsel, appearing on behalf of the fourth respondent. 6. The learned counsel for the petitioner submitted that as per the 'Will', dated 9.9.1991, executed by the mother-in-law of the petitioner-Mrs. Saraswathiammal, the petitioner is the owner of the property and to establish his right, he had already filed a petition before the civil Court. The learned counsel further contended that the petitioner has been in possession and enjoyment of the property and he is entitled to assert his right, as per his possession also. 7. The learned counsel for the second respondent submitted that the fourth respondent had mortgaged the property, referred to supra, for availing educational loan and since she had defaulted, in repaying the loan amount, the second respondent/bank had initiated proceedings for recovery of the loan amount and in that process they bring the property for sale also, to realise the dues and as per the records, the fourth respondent is the exclusive owner of the property. Therefore, the bank has every right to proceed under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 8. The right claimed by the petitioner, on the basis of the 'Will', dated 9.9.1991, said to have been executed by the mother-in-law of the petitioner-Mrs. Saraswathiammal, and possession, can be proved only before the competent civil forum and the disputed question of fact, cannot be decided in the writ petition. Therefore, it is open to the petitioner to pursue his remedy before the civil Court, in the manner known to law. 9. Saraswathiammal, and possession, can be proved only before the competent civil forum and the disputed question of fact, cannot be decided in the writ petition. Therefore, it is open to the petitioner to pursue his remedy before the civil Court, in the manner known to law. 9. It is settled law that for issuing a writ of mandamus, the petitioner must have a legal right and the respondents must have a legal obligation to do some act, prescribed by the statute, as held by the Honourable Apex Court in Union of India versus C. Krishna Reddy, reported in 2003 (12) SCC 627 . Paragraph No.13 of the judgment would run thus: 13. It is well settled by a catena of decisions of this Court that a Writ of Mandamas can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their Jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (See Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh AIR 1977 SC 2149 para 15, Lekhraj Satram Dass Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334 and Dr. Umakant Saran v. State of Bihar AIR 1973 SC 964 ). 10. In this case, the petitioner has not established his right in the property so far, nor established the legal duty, cast upon the second respondent bank, to oblige his request, for extension of time to re-pay the loan amount. The fourth respondent, who has mortgaged the subject property is strongly objecting to the redemption of the property, by the petitioner. 11. In the light of the judgment of the Honourbale Apex Court and our discussion supra, the prayer sought for in the writ petition cannot be granted. The second respondent can proceed with the auction sale to recover the dues, to the bank, in the manner known to law. Accordingly, the writ petition is dismissed. 11. In the light of the judgment of the Honourbale Apex Court and our discussion supra, the prayer sought for in the writ petition cannot be granted. The second respondent can proceed with the auction sale to recover the dues, to the bank, in the manner known to law. Accordingly, the writ petition is dismissed. There is no order as to costs. Consequently, connected miscellaneous petition is dismissed.