Dismissed

Ms Hari Om Trading Company v. City Union Bank Limited

DRT20 Jul 2023SA/220/2023

Case brief

AI extract

What is this about?

Applicant sought direction to remove locks on a pathway alleged to be common property to restore joint possession pending sale proceedings. Tribunal rejected the direction as the land dispute was pending before a Civil Court and no challenge existed to the section 14 measures taken by the bank.

What did the court decide?

Direction to remove locks and restore joint possession of Schedule 'C' property denied.

Ms Hari Om Trading Company versus City Union Bank Limited — DRT (2023) — LawSathi Research

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BEFORE THE DEBTS RECOVERY TRIBUNAL – II AT CHENNAI

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Dated this 20^th day of July, 2023

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PRESENT : SHRI T.RAJESH PRESIDING OFFICER

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IA No.935/2023 IN SA No.220/2023

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M/s.Hari Om Trading Company, No.34, Pankajam House Road, Theni Town, Theni District, Represented by its Partner, Mr.A.P.Jayakar. … Petitioner/Applicant.

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Vs.

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The Authorised Officer, Credit Recovery & Management Department, City Union Bank Limited, Administrative Office No.24-B, Gandhi Nagar, Kumbakonam, Tanjavur Dist. – 612 001.

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M/s.Senthil Andavar Trading Company, No.6/45, New Grain Market, Enumamula, Warrangal – 506 002.

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Also at

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S.Nos.146 & 148, P.B.No.17, New Grain Market, Enumamula,

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Warrangal – 506 002.

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A.R.Sridharan, S/o.V.P.S.A. Rathina Nadar, No.6/13, Enumamula, Warrangal – 506 002.

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A.R.S.Balaraman, S/o. A.R.Sridharan, 6/13, Enumamula,

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Warrangal – 506 002.

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A.R.S.Harikrishnan, S/o. A.R.Sridharan, D-33, MCC Road, Virudhunagar.

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A.R.S.Kannan, S/o. A.R.Sridharan, 140-A-B, Salai Street, Ramanathapuram – 623 501.

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Mrs.A.R.S.Vasuki, W/o. A.R.Sridharan, No.6/13, Enumamula, Warrangal – 506 002.

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M/s.A.V.Shanmuganathan & Co., 238, South Car Street, Sankarankovil – 627 756.

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M/s.V.P.S.A.Rathina Nadar Firm, S.Nos.146 & 148, New Grain Market, Enumamula, Warrangal – 506 002.

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Mrs.A.R.S.B.Jayachitra, W/o. Balaraman, 6/13, Enumamula, Warrangal – 506 002.

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A.R.Jagadeesan, S/o. V.P.S.A.Rathina Nadar, 6/13, Enumamula, Warrangal – 506 002.

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Also at

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No.10/2, Bankajam House Road, Theni – 626 531.

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A.S.R.R.Krishnan, S/o. A.R.Ramesh, D-33, MCC Road, Virudhunagar.

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Mrs.Swarnalatha, W/o. A.R.Jagadeesan, 140-A-B, Salai Street, Ramanathapuram.

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Also at

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No.10/2, Bankajam House Road, Theni – 626 531.

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Mrs.A.R.R.Sarasubala, W/o. A.R.Ramesh, No.33, MCC Road, Virudhunagar.

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Mrs.S.K.Rathi, W/o. A.R.S.Kannan, 140-A-B, Salai Street, Ramanathapuram.

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Mrs.Madhumathi, W/o.A.R.Dhanasekaran, 251, South Car Street, Sivanthi Vasal, Sankarankovil – 627 756.

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Also at

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No.8/3, A.A.Road, Virudhunagar – 626 001. … Respondents/Respondents.

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Counsel for Petitioner/Applicant : M/s.Rugan & Arya. Counsel for 1^st Respondent/1^st Respondent : M/s.Ananda Gomathy. Respondents 2 to 16/Respondents : ---------

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O R D E R

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This IA is filed by petitioner/applicant seeking a direction to the 1^st respondent bank to remove the lock and board displayed by them and restore the petitioner’s joint possession of schedule ‘C’, common pathway measuring 1560 Sq.ft. on the southern side of ‘A’ schedule property, pending disposal of SA 220/2003.

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The applicant preferred this SA under section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after called SARFAESI Act or the ‘Act’, as the case be), with a prayer to set aside the Tender cum Auction Sale Notice dt.04.05.2023 issued by the 1^st respondent and also with an additional prayer to issue consequential direction prohibiting the 1^st respondent bank, its servants, officers and all persons claiming under it, from in any manner disturbing or interfering with the applicant’s peaceful possession of ‘C’ schedule property.

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The case of the petitioner/applicant can be encapsulated as follows:

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The petitioner/applicant is a third party and is challenging the measures contending that the measures are taken against the common pathway which is described as ‘C’ schedule which the applicant claims to be common for two pieces of land which belongs to applicant and 8^th respondent, referred to as ‘A’ and ‘B’ schedule properties respectively. Accordingly to applicant, all these properties lying ostensibly in the name of 8^th respondent, a partnership firm in which respondents 3 to 7 and respondents 10 to 16 are the partners. The applicant is putting forth a case that large extent of properties including the schedule properties were joint family properties belongs to the heirs of late V.P.S.Ayyemperumal Nadar. According to applicant, there was a original partition in the year 1998 among the family members which was later

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confirmed by a Memorandum dt.17.01.2000 wherein ‘A’ schedule property admeasuring about 7595 Sq.ft. was allotted to the applicant and ‘B’ schedule property admeasuring 2640 Sq.ft. was allotted to R8 whereas schedule ‘C’ property; the so claimed common pathway was allotted as common pathway for schedule ‘A’ and ‘B’ properties jointly to the applicant and R8. According to the applicant, the same was again re-confirmed by deed of common pathway agreement dt.05.11.2015 executed between the applicant and R8, registered as Doc.No.762/2015 of Joint SRO 1, Ramanathapuram.

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It is the specific case of the applicant that ever since the oral partition ‘C’ schedule property was being used and enjoyed by the applicant and the 8^th respondent for ingress and egress to the respective properties. It is also stated that being that the situation, the applicant came to know about the creation of security interest by R8 in favour of 1^st respondent bank and on coming to know about the same, a letter was issued on 14.11.2018 narrating the fact as to the existing of common pathway. It is also stated that since no action has been taken by the respondent bank, the applicant again preferred protest letter dt.04.08.2021 before the Joint SRO 1, Ramanathapuram. It is further stated that the bank had in the meanwhile issued an auction sale notice dt.27.09.2021 claiming as if that R8 is the owner of entire 4200 Sq.ft. According to applicant none of the officers have had ever inspected the schedule properties either before or after the creation of security interest.

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Hence, according to the applicant, R8 is in absolute ownership of an extent about 2640 Sq.ft. of land only (Schedule ‘B’ property) and the remaining 1560 Sq.ft. of land forming the southern boundary of ‘B’ schedule property is a common pathway under joint common ownership of both applicant as well as R8. Impugning the earlier sale notice, the applicant preferred SA 286/2021 before DRT-I and the said Tribunal taking note of the inter se dispute as to the identity of the property disposed of the SA with the following directions:

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“….. the respondent bank to convene a meeting with the applicant to consider and take note of the case of applicant as per the letter dated 14.11.2018. The parties are at liberty to approach the Civil Court in case of non-resolution of the dispute since the part of the land allegedly mortgaged by the borrower is stated to be done suppressing the fact of the common pathway rights.”

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It is also the grievance of the applicant that despite the said direction, the respondent had not taken any action in compliance of the same, though the applicant approached them with a letter dt.13.09.2022.

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Being the above situation, the applicant preferred original suit as OS No.34/2020 before Ld. Principal District Judge, Ramanathapuram wherein the bank is also a party. In the suit the applicant prays for declaratory decree declaring the title of the applicant as to the undivided half share of ‘C’ schedule property and also seeks for a consequential prohibitory injunction. In the above matter, notice was issued by the Civil Court on 12.04.2023. In the above premises the

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petitioner/applicant filed this IA and SA with the aforementioned prayers.

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Since the only issue that is to be gone into in this direction petition is as to the right of the application over schedule ‘C’ property, no notice was issued to respondents 2 to 16.

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The applicant prefers this IA alleging that during the pendency of the SA, the respondent took physical possession of the property and had locked ‘C’ schedule property to prevent the ingress and egress of ‘A’ and ‘B’ schedule properties. According to the applicant the said action of 1^st respondent in their high handed activity in putting lock and seal on the common pathway which is the subject matter of the SA has to be interfered with and appropriate orders has to be passed for removing lock and key.

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The 1^st respondent had filed their counter affidavit in IA refuting the contentions therein and contending that ‘C’ schedule property is not a common pathway as claimed by the applicant and ‘C’ schedule property very well forms part and parcel of the mortgaged properties.

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Heard the respective counsels for both sides and considered the claim of the applicant as made in the IA and SA. It is to be noted that the applicant is placing his entitlement on the basis of oral partition in

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respect of the property which according to the applicant is family property whereby ‘C’ schedule property was set apart for common use of applicant as well as R8. It is also stated that said oral partition had been reduced in writing on 17.01.2000 and subsequently an agreement was also registered on 05.11.2015.

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In contra, the Ld. Counsel for respondent had contended that the possession of the property was taken pursuant to the order passed u/s.14 of the Act and the same is not the subject matter of this SA.

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Having heard the respective counsels on this issue, this Tribunal feels that in the light of admitted facts by both sides, this petition cannot be entertained by this tribunal for two reasons, one, the same subject matter in issue has been in pendency before a competent Civil Court wherein admittedly the applicant had sought for an interim injunction which was not granted by that Civil Court. Secondly, the subject matter of this SA is only regarding the legality of the measures leading to the issuance of impugned sale notice and this Tribunal will not be justified in interfering with an action taken in pursuant to the powers conferred u/s.14 of the Act. In the absence of any challenge as to the measures taken by the respondent u/s.14, this Tribunal is not supposed to undo a step taken in that regard by the respondent in pursuant to section 14 orders though, the applicant contends as illegal, especially when there is no challenge as to the measures u/s.14 of the Act.

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It is also admitted by both sides that the physical possession of the

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‘C’ schedule property is already taken by the respondent and hence there exist no balance of convenience in favour of petitioner in granting such relief. The right if any of the applicant is to be adjudicated in the main SA and at present there is no justification for this Tribunal to undo an action taken by the respondent by invoking a provision of the statute.

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In view of the aforementioned reasons, this Tribunal is not inclined

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to grant a relief as sought for in the IA and hence IA is liable to be dismissed.

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14. In the result, IA No.935/2023 stands dismissed.

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( Dictated to PA, transcribed by him, corrected, signed and pronounced by me in the Open Court, this 20^th day of July, 2023 )

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Sd./(T.RAJESH) PRESIDING OFFICER DRT-II, CHENNAI

Ms Hari Om Trading Company v. City Union Bank Limited

Case brief

What is this about?

What did the court decide?

Ms Hari Om Trading Company v. City Union Bank Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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