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2014 DIGILAW 775 (MAD)

Venkatesan v. Superintendent of Police

2014-03-26

M.VENUGOPAL

body2014
JUDGMENT 1. The Petitioner has preferred the instant Writ of Mandamus praying for passing of an order by this Court in directing the Respondents to offer police protection to him at his cost in taking delivery of physical possession of the property situate at Survey No.414-3C-1 of Gummidipoondi Village, Gummidipoondi District measuring an extent of 0.25 acres. 2. According to the Petitioner, one Arunachala Nadar obtained loan from Tamil Nadu Industrial Investment Corporation in the year 1989 for the purpose of constructing a Lodging House. The said Lodging House was constructed in the property given as collateral security for due discharge of the loan amount. In the mean while, Arunachala Nadar died in the year 2002 and the loan amount remains unpaid. The Third Respondent/Tamil Nadu Industrial Investment Corporation exercised its powers in terms of mortgage and also under the statute and brought the property for sale by a public auction. 3. In the meanwhile, the Fourth Respondent approached this Court by challenging the proceedings of the Third Respondent in W.P.No.35771 of 2003 and this Court, on 08.12.2003 disposed of the Writ Petition, whereby and whereunder, in paragraphs 3 and 4, it is observed as follows: "3. Having regard to the above fact and with a view to give one more opportunity to the Petitioner, while disposing of the Writ Petition, I am inclined to pass the following order: "Confirmation of the auction held today in favour of the highest bidder would stand deferred on condition that the Petitioner deposits a sum of Rs.50,000/- on or before 31.12.2003 with the Respondent and the balance sum of Rs.12,50,000/- shall be paid either as one time payment or in instalments on or before 28.02.2004. Failing compliance of the conditions referred to above would result in the order granting instalment payment today standing revoked with livery to the Respondent to proceed with the legal consequences of the auction held today and in that course this order will not come in the way of the Respondents. This Court is informed that the Petitioner had already given a representation dated 22.10.2003 to the Respondent offering an one time settlement and such a request is well within the time namely, 31.12.2003. Therefore, the Respondent is directed to consider that representation, in accordance with law and pass orders thereon in any event not later than 10.01.2004. This Court is informed that the Petitioner had already given a representation dated 22.10.2003 to the Respondent offering an one time settlement and such a request is well within the time namely, 31.12.2003. Therefore, the Respondent is directed to consider that representation, in accordance with law and pass orders thereon in any event not later than 10.01.2004. If there is an order in favour of the Writ Petitioner, on that representation, then the Petitioner would not be entitled to the benefits of the instalment payment granted today and instead he has to adhere to the terms and conditions of the acceptance, if any on the one time settlement offer made by the Petitioner." 4. The Writ Petition is disposed of accordingly. Consequently, the connected W.P.M.Ps are also closed. No costs." 4. Later, the Fourth Respondent approached the Third Respondent for one time settlement and waiver of interest. The Third Respondent/Corporation called upon him to pay at Rs.9,12,719/- towards one time settlement. Further, the Fourth Respondent failed to avail the one time settlement which resulted in taking of coercive action in bringing the property on auction. 5. In November, 2003, an 'Auction Notice was published in Tamil Daily 'Thina Thanthi' and the Petitioner participated in the public auction that took place on 08.12.2003. Four bidders participated in the auction that took place on 08.12.2003. He was declared as highest bidder and the bid amount was Rs.14,00,000/-. The sale was also confirmed by the Third Respondent Corporation. He paid the entire amount and the Sale Deed was executed in his favour on 06.05.2004 on the file of Sub Registrar, Gummudipoondi. 6. The plea of the Petitioner is that the Fourth Respondent [erstwhile property owner] had not initiated any action to set aside the public auction sale. The excess amount received by way of sale proceeds after adjusting the loan amount, viz., Rs.30,206.70 was paid to the Fourth Respondent on 04.05.2004. The said communication dated 04.05.2004 was challenged by the Fourth Respondent in W.P.No.14111 of 2004. 7. The Petitioner filed an impleading petition in the Writ Petition No.14111 of 2004 and ultimately, the said Writ Petition was dismissed by this Court on 03.11.2004, whereby and whereunder, in paragraph – 2, it was observed as follows: "2. The said communication dated 04.05.2004 was challenged by the Fourth Respondent in W.P.No.14111 of 2004. 7. The Petitioner filed an impleading petition in the Writ Petition No.14111 of 2004 and ultimately, the said Writ Petition was dismissed by this Court on 03.11.2004, whereby and whereunder, in paragraph – 2, it was observed as follows: "2. Having regard to the fact that the Petitioner did not submit the demand draft for a sum of Rs.17,50,000/-26.10.2004, the order had already worked itself out and the Writ Petition did not survive. Therefore, no further orders are necessary in this Writ Petition. Consequently, connected W.P.M.Ps are also dismissed." 8. Being dissatisfied with the order dated 03.11.2004 in W.P.No.14111 of 2004, the Fourth Respondent, as an aggrieved person, approached this Court by filing W.A.No.4198 of 2004 and on 19.12.2007, this Court dismissed the Writ Appeal by making the following observations: "25.We have considered the entire matter in the light of the factual matrix and with reference to the principles laid down by the Supreme Court and we do not find any reason to interfere with the discretionary order which is impugned in the writ appeal. Accordingly, the writ appeal is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs." 9. At this stage, it may not be out of place by this Court to make a significant mention that in paragraphs-18 and 21 of the order dated 19.12.2007 in W.A.No.4198 of 2004, this Court had made the following observations: "18. Therefore, we do not find any reason, much less justifiable reason to interfere with the proceedings of the first Respondent in auctioning the property in favour of the second Respondent, in as much as sufficient opportunity was given to the appellant to pay the amount. No document is produced by the appellant to show that before fixing the upset price due notice has to be issued to the borrower with respect to the sale of the property. In view of the fact that this court has shown indulgence to the appellant on three occasions to discharge the loan amount and as the appellant has not availed the said opportunity we do not find any reason to interfere with the order of the learned Single Judge. 21. In view of the fact that this court has shown indulgence to the appellant on three occasions to discharge the loan amount and as the appellant has not availed the said opportunity we do not find any reason to interfere with the order of the learned Single Judge. 21. So far as the present case is concerned, it is on record that the first Respondent has published the sale consideration in "Thina Thanthi" and only after receiving the bids from various tenderers, the auction was confirmed in favour of the second Respondent. Even after issuing the said notification the first Respondent permitted the appellant to pay the entire amount by way of one time settlement and the said offer has not been made use of by the appellant. Subsequently, the learned Single Judge as a condition for postponing the auction, permitted the appellant to pay the amount in two instalments, the substantial second instalment being payable after a period of one year. The appellant also failed to make use of the equitable order granted by the learned Single Judge. After the sale was conducted and the bid was confirmed in the same of the second Respondent, again on two occasions, the learned Single Judge permitted the appellant to deposit the amount. However, the appellant failed to comply with those orders also. In such circumstances, the judgment relied on by the learned counsel for the appellant would not come to his rescue inasmuch as the facts in those cases are entirely different." 10. The grievance of the Petitioner is that even after the dismissal of the Writ Petition No.14111 of 2004 dated 03.11.2004 and the Judgment in W.A.No.4198 of 2004 dated 19.12.2007, the Fourth Respondent failed to hand over the possession of the property for a very long time and in fact, the Petitioner is entitled to take possession. Further, the Petitioner had invested huge sum in regard to purchase of the property and till date, he is not in a position to take possession of the purchased property by means of public auction from the Fourth Respondent. 11. Further, the Petitioner had invested huge sum in regard to purchase of the property and till date, he is not in a position to take possession of the purchased property by means of public auction from the Fourth Respondent. 11. The Learned Counsel for the Petitioner urges before this Court that the Petitioner was a successful bidder in the public auction and further, the sale deed dated 06.05.2004 for Rs.14,00,000/-was executed in his favour by the Third Respondent and since, the erstwhile owner of the property, viz., the Fourth Respondent, till date not handed over the possession of the property physically to the Petitioner, the present Writ Petition has been filed by him praying for passing of an order by this Court in directing the Respondents to offer police protection to the Petitioner at his cost to take delivery of physical possession of the property situated at Survey No.414-3C-1 of Gummidipoondi Village, Gummidipoondi Taluk, Tiruvallur District measuring an extent of 0.25 acres. 12. However, the Learned Counsel for the Third Respondent submits that the Petitioner after duly accepting the terms and conditions for sale, participated in the auction and offered the highest bid and as per Clause-3 in the General conditions of the Terms and Conditions for Sale, the sale of the land, building and/or plant and machinery, accessories and other articles are on as is where is basis, tenders/bidders are assumed to have inspected the assets and the principle of caveat emptor would apply to the sale. Continuing further, the Learned Counsel for the Third Respondent contends that the Petitioner took possession of the property sold on 20.04.2004 itself and got the sale deed executed on 06.05.2004. 13. It is the submission of the Learned Counsel for the Fourth Respondent/Erstwhile owner that the Fourth Respondent is residing with his family with grown up daughters in the subject matter of the property in issue and further, he is in possession and enjoyment of the same. As such, the Petitioner has lost his right to initiate any proceedings through the Court of law, within a prescribed time and therefore, the Writ Petition filed by him is per se not maintainable. 14. As such, the Petitioner has lost his right to initiate any proceedings through the Court of law, within a prescribed time and therefore, the Writ Petition filed by him is per se not maintainable. 14. Apart from the above, it is the contention of the Fourth Respondent that the sale deed dated 06.05.2004 executed by the Third Respondent and in favour of the Petitioner is only a pending document on the file of Sub Registrar Office, Gummidipoondi and further, the sale deed in question was only presented before the said SRO and in reality, the title to the property was not transferred in favour of the Petitioner as on date. Also, an argument has been projected on the side of the Fourth Respondent that his right to challenge the sale dated 06.05.2004 is not extinguished under law. 15. This Court has noticed the respective submissions/contentions of the Learned Counsel for the Petitioner and the Learned Counsel for the Third and Fourth Respondents. 16. It is to be pertinently pointed out by this Court that although the jurisdiction of High Court is not confined to issuing the prerogative writs, the Court will not permit this extra-ordinary jurisdiction to be converted into a suit, as per the decision of the Hon'ble Supreme Court SRI SOHAN LAL V. UNION OF INDIA AND ANOTHER, AIR 1957 SUPREME COURT AT PAGE 529. Further, in the aforesaid decision at paragraph-5 , it is observed as follows: "(5) We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. If we were to do so, we would be entering into a field of investigation which is more appropriate for a Civil court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. These are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Art. 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered." 17. Also, this Court aptly points out that no declaration can be had in a Writ Proceeding merely for the declaration of a person's title or right to possession or contractual rights, as per the decision HANIF V. STATE OF ASSAM, (1970) 2 SCR AT PAGE 197. 18. In the decision of this Court, M.S.KUSHAN CERAMICS V. TAMIL NADU INDUSTRIAL INVESTMENT CORPORATION, 1997 (VOL.I) MLJ AT PAGE 485, it is held as follows: "It is settled by a catena of decision of this Court and also of the Supreme Court that the respondent have got powers under Sec.29 of the Act to take possession of the assets of the defaulting units and sell the same to recover its dues." Also in the aforesaid decision at Page 489 in Paragraph-4, inter alia it is observed as under: "... ... The Supreme Court has also deprecated the practice of forestalling the recovery of public money in Assistant Commissioner of Central Excise v. Dunlop India Limited, A.I.R. 1985 S.C. 330: (1985) 1 S.C.C. 260 : (1989) 1 An.L.T.257. The Supreme Court has also in its recent judgments reported in Chairman and Managing Director, SIPCOT, Madras v. Contrimax (P) Limited, A.I.R. 1995 S.C. 1632 and J.T. (1996) 5 Supreme Court today 37, while considering the scope and ambit of Sec.29 of the Act, held that courts have no power of judicial review against the action initiated under Sec.29 of the Act." 19. At this stage, this Court worth recalls and recollects a decision of this Court V.RAJENDRAN V. TAMILNADU INDUSTRIAL INVESTMENT CORPORATION REP. At this stage, this Court worth recalls and recollects a decision of this Court V.RAJENDRAN V. TAMILNADU INDUSTRIAL INVESTMENT CORPORATION REP. BY ITS MANAGING DIRECTING, CHENNAI-35 AND ANOTHER, (2007) 6 MLJ AT PAGE 624, wherein it is observed as follows: "When the borrower lacks bona fide and he has not utilized the several opportunities for settling the loan amount, then the action of the Financial Corporation in brining the collateral security for public auction, cannot be termed as mala fide or unreasonable. A writ petition by borrower, seeking writ of mandamus not to confirm the auction sale, which is only consequential, without challenging the sale, is not maintainable." 20. That apart, this Court cites the decision LASER SPECTRA TECHNOLOGY PVT. LTD. REP. BY ITS MANAGING DIRECTOR K. GANESAN, SIRKAZHI V. TAMIL NADU INDUSTRIAL INVESTMENT CORPORATION LTD. (TIIC), REP. BY IT CHAIRMAN AND MANAGING DIRECTOR, CHENNAI AND ANOTHER, reported in (2007) 7 MLJ 1039 , whereby and whereunder, it is held as follows: "The Court cannot substitute its decision for the decision of financial corporation as Court should not risk their judgments in commercial matters for judgment of bodies to whom that task is assigned." 21. In the decision of the Hon'ble Supreme Court in KRISHNA SINGH RANA V. HARYANA STATE INDUSTRIAL DEVELOPMENT (2000) MLJ SUPPL. AT PAGE 63 (SC), it is held that 'the Corporation cannot evict a tenant except in accordance with law'. 22. Before this Court, the Original Sale Deed bearing document No.2134 of 2004 pending on the file of Sub Registrar Office, Gummidipoondi, is produced today by the Learned Counsel for the Petitioner. A mere perusal of the endorsement/Note dated 11.01.2005, made in the said document shows that the said document was returned as per the order dated 17.12.2004 made in W.P.No.20209 of 2004 on the file of High Court of Madras till that proceedings under Section 47(A)(1) of the Indian Stamp Act, 1899 reaches finality and deficit stamp duty was paid. Till then it was made mention of that there would be a charge of the said property for the deficit stamp duty payable. 23. It is true that the Petitioner is the successful auction purchaser of the petition mentioned property in terms of sale deed dated 06.05.2004. As on date, the said sale deed bearing document No.2134 of 2004 on the file of SRO, Gummidipoondi, is only a pending document for registration. 23. It is true that the Petitioner is the successful auction purchaser of the petition mentioned property in terms of sale deed dated 06.05.2004. As on date, the said sale deed bearing document No.2134 of 2004 on the file of SRO, Gummidipoondi, is only a pending document for registration. The said document is pending for registration for want of payment of deficit stamp duty and deficit registration charges, as seen from the endorsement made on the reverse of Page-2 of the said document. Even though the Petitioner has purchased the property by means of sale deed dated 06.05.2004 executed by the Third Respondent in his favour, yet the said document is only a pending document for registration and as such, this Court is of the considered view that the Petitioner is to work out his remedy to evict the Fourth Respondent from the petition mentioned premises in the manner known to law and in accordance with law. Without approaching the competent Civil Forum/Civil court, sale deed dated 06.05.2004, is no free from any crowd and shroud and yet this Court of the considered view that the Petitioner has to file necessary civil suit for evicting the Fourth Respondent and for that purpose, he has to seek necessary relief, since his right to that extent is not vanished or extinguished. In fact, as and when the Petitioner files a Civil Suit based on the sale deed dated 06.05.2004, it is open to him to seek necessary relief of police protection for evicting the Fourth Respondent in regard to taking possession of the property of the petition mentioned premises by adhering to the Principles of 'Due Process of Law'. It is to be remembered that even an unlawful occupier or a Trespasser is entitled to be evicted from the property only in the manner known to law and in accordance with law. In that event, it is open to the Petitioner and the Fourth Respondent to raise all factual and legal pleas in the Civil Suit and project their respective contentions both Factual and Legal pleas if he so desires/is advised. 24. It is brought to the notice of this Court that the Petitioner's auction sale was also confirmed on 24.03.2001 and the Fourth Respondent has not vacated the premises till date. 24. It is brought to the notice of this Court that the Petitioner's auction sale was also confirmed on 24.03.2001 and the Fourth Respondent has not vacated the premises till date. However, the payment of stamp duty etc, is only inter se matter between the Petitioner and the Registrar/Stamp Authorities and in this regard, the Fourth Respondent has no say whatsoever. 25. Before resorting to an appropriate civil proceedings before the competent forum, this Court is of the considered opinion that it is not open to the Petitioner to approach this Court in Writ Jurisdiction which is a discretionary remedy under Article 226 of the Constitution of India to seek the relief of police protection. 26. In view of the aforesaid observations, the Writ Petition stands dismissed. No costs.