Allowed

Cholamandalam Investment and Finance Company Limited v. Palaniswamy

DRAT5 Jul 2022MISC APPEAL/1/2022

Case brief

AI extract

What is this about?

The Appellant secured creditor preferred an appeal against a DRT order directing redelivery of possession. Relying on High Court precedents, the Tribunal allowed the appeal, setting aside the redelivery direction for the pending enquiry under Section 17 of the SARFAESI Act.

What did the court decide?

The direction of the Tribunal below directing the appellant to redeliver possession was set aside; the Tribunal is directed to decide the main SA in accordance with law.

Cholamandalam Investment and Finance Company Limited versus… — Banking and Recovery | DRAT (2022)

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MA(SA) 1/2022

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 5^th of July, 2022

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar CHAIRPERSON

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MA(SA) 1/2022

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(SIA 1032/2021 in SA 357/2021 on the file of DRT-I, Chennai)

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Between

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The Authorised Officer, Cholamandalam Investment and Finance Co. Ltd. No.2, 1^st Floor, Dare House, NSC Bose Road, Parrys, Chennai 600 001.

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……Appellant

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And

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S. Palaniswamy S/o Mr. Shanmugham New No.9, Old No.5, 4^th Street, Dr. Thirumoorthy Nagar, Nungambakkam, Chennai 34.

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….. Respondent

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Counsel for Appellant : M/s K.J. Parthasarathy & Co.

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Respondent remained exparte.

MA(SA) 1/2022

ORDER

This Appeal is preferred under Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) against the order dated 29.12.2021 in SIA 1032/2021 in SA 357/2021 on the file of DRT-I, Chennai.

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The appellant herein is the secured creditor and the respondent herein

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filed SARFAESI application No.357/2021, challenging the measure taken under

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SARFAESI Act.

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Respondent, in spite of service did not appear and remained ex parte.

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Heard advocate for appellant.

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It is submitted that Tribunal below while considering the interim prayer in

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SIA 1032/2021 directed the borrower/respondent herein to deposit a sum of Rs.65.00 lakhs to the credit of the loan account and on such deposit, physical

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possession, which was already taken is directed to be redelivered to the borrower

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and aggrieved by such a direction, present appeal is preferred.

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MA(SA) 1/2022

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It is further submitted that main Securitization application viz., SA 357/2021 is still pending and redelivery is only after enquiry under Section 17 of the SARFAESI Act, but not as an interim measure.

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To support his arguments, advocate for appellant placed reliance on the following decisions of Full Bench and Division Bench of Hon’ble High Court of Madras respectively.

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i) Laskshmi Shankar Mills (P) Ltd. And others Vs. The Authorised Officer, Indian Bank and others reported in 2008 (2) CTC 529 (Full Bench of Hon’ble High Court of Madras)

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ii) Sri Manicka Vinayagar Spinning Mills Vs. State Bank of India reported in 2008 SCC Online Mad 1211 (Division Bench of Hon’ble High Court of Madras)

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It is submitted that in both these decisions, it is clearly held that redelivery

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of possession cannot be granted till it is decided by DRT in the application under Section 17 of SARFAESI Act, as a final measure, in view of the above two decisions, direction of Tribunal below cannot be sustained. On a perusal of the impugned order with reference to decisions referred above, I have to accept the argument of advocate for appellant that direction to redeliver as interim measure is unwarranted.

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MA(SA) 1/2022

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For the above reasons, appeal is allowed and the direction of Tribunal

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below directing the appellant herein to redeliver possession of the immovable property to respondent herein is hereby set aside and Tribunal below shall decide the main SA i.e., SA No.357/2021 in accordance with law, without being influenced

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by any of the observations made herein. No costs.

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[Dictated to Steno(SN), transcribed by him, corrected, signed and pronounced by me in open court, this 5^th July, 2022]

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Sd/- [ Justice S. Ravi Kumar ] CHAIRPERSON

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Cholamandalam Investment and Finance Company Limited v. Palaniswamy

Case brief

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Cholamandalam Investment and Finance Company Limited v. Palaniswamy

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