Writ petitions filed against the Debts Recovery Appellate Tribunal, Chennai, challenging orders closing interim applications for record of compromise and transfer of SARFAESI appeals. The High Court found no manifest illegality and dismissed the petitions.
The writ petitions were dismissed. No costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.02.2017
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
W.P.Nos.3541 & 3542 of 2017
versus 1. The Authorised Officer, ICICI Bank Ltd., Arihant Insight, SP 24, Ambathur Industrial Estate, Ambathur, Chennai - 600 058.
Prayer in W.P.No.3541 of 2017: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of certiorarified Mandamus, calling for the records of the impugned order dated 20.12.2016 passed in I.A.No.442/16 in M.A.No.89 of 2014 on the file of the Debts Recovery Appellate Tribunal, Chennai and quash the same and further direct the 1st respondent (i.e.) the ICICI Bank, to return the original, title deeds of the subject matter in the above said I.A.No.442 of 2016 in M.A.No.89 of 2014 on the file of the Debts Recovery Appellate Tribunal, Chennai, to the petitioners.
Prayer in W.P.No.3542 of 2017: Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of certiorarified Mandamus, calling for the records of the impugned order dated 20.12.2016 passed in I.A.No.443/16 in M.A.No.90 of 2014 on the file of the Debts Recovery Appellate Tribunal, Chennai and quash the same and further direct the 1st respondent (i.e.) the ICICI Bank, to return the original, title deeds of the subject matter in the above said I.A.No.443 of 2016 in M.A.No.90 of 2014 on the file of the Debts Recovery Appellate Tribunal, Chennai, to the petitioners.
For petitioners : Mr.G.K.R.Pandiyan in both W.Ps.
COMMON ORDER
(Order of the Court was made by S.MANIKUMAR, J.)
Claiming himself to be a bonafide purchaser of property, subject matter of two possession notices dated 22.10.2013, issued under Section 13(4) of the SARFAESI Act, 2002, by ICICI Bank, SARFAESI Applications viz., S.A.Nos.235 and 236 of 2013 have been filed before the Debts Recovery Tribunal, Madurai.
"(i) Directing the:
a. Defendants 1 to 4 jointly and severally to pay the dues under the Open Cash Credit Limit of Rs.55,29,407.65p (Rupees Fifty Five Lakhs Twenty Nine Thousand Four Hundred Seven and Paise Sixty Five Only) together with interest at the rate of 2% over the BPLR (presently 16%) i.e., 18% with monthly rests and 2% penal interest on the overdue balance from this date until payment in full and the Applicant's costs of this Application,
(ii) to issue a certificate to the Recovery Officer for recovery of the amount of debts specified in (a) (iii) to pass an order that on default of payment of debts, the properties described in Schedule A belonging to 3rd Defendant shall be sold and the net sale proceeds be appropriated towards the debt mentioned in column (1)(a) above:
(iv) to pass an order to proceed personally against 2nd to 4th Defendants in case the debt is not cleared after the appropriation of net sale proceeds of assets under Schedule A mentioned under column (i) (a);
(v) Any other relief which this Hon'ble Tribunal may deem fit and proper on the facts and circumstances of the case be also granted to the Applicant and against the defendant."
to Debts Recovery Tribunal-II, Chennai, to be tried alongwith O.A.No.117 of 2010 on the file of Debts Recovery Tribunal-II, Chennai. They have also taken out another M.A.No.90 of 2014 to withdraw S.A.No.236 of 2013 on the file of Debts Recovery Tribunal, Madurai and to transfer the same to the file of Debts Recovery Tribunal-II, Chennai, to be tried alongwith O.A.No.117 of 2010 on the file of Debts Recovery Tribunal-II, Chennai.
seeking transfer of SA 235/2013 from the file of DRT, Madurai to DRT-II, Chennai, to be tried together alongwith OA No.117/2010.
to pass necessary orders, after giving opportunity of hearing to the parties, in accordance with the law.
M.A.No.90 of 2014
"ORDER
Tribunal had posted the matters for an effective adjudication of the prayer of return of documents to the appellants and also to record compromise, the Debts Recovery Appellate Tribunal, ought not to have closed the direction petitions I.A.Nos.442 and 443 of 2016 filed in M.A.Nos.89 & 90 of 2014, respectively.
"Schedule A
Thanjavur District, Thanjavur Taluk, Thanjavur District Registrar Office, Nelagiri South (Thottam Village) in Survey No.18, an extent of 28688 sq.ft. out of Ac.6.14 cents following four Boundaries: North by : Propertied belonging to Muthuswamy and
Survey No.19 & 20 South by : Remaining Land in Survey No.18 East by : Survey Nos.19 and 20 West by : Survey No.16. Within this four boundaries 28688 sq.ft. site including pathway rights.
The above said property situated at Nelagiri South Garden within the limits of Thanjavur Taluk, Thanjavur District.
Schedule B
Tiruchirapalli District, Tiruchirapalli Taluk, Tiruchirapalli Woraiyur Sub-Registration District, Puthur Village, Old Municipal Ward-2, Block-29, Old T.S.No.1446/1 part, for which the New Ward - 'C', New Block-30, New T.S.No.17/part, Door No.6A, totalling an extent of 3120 sq.ft. land with building in boostudhi situate within the following boundaries:
Item No.1
North by : Plot No.7, South by : Allithurai Road, East by : Item No.II, West by : Plot No.9 & 10.02.2017 Measurement: East-West on the Northern side 26 ft. Southern side 47 ft.
North-South on the Eastern Side 49 ft. Western Side 54 ft. totalling an extent of 1747 sq.ft.
Item No.2
North by : Land in T.S.No.18, South by : Allithurai Road, East by : Land in T.S.No.19/2, West by : Item No.1 Measurement:
East-West on the Northern side 37.5 ft., Southern Side 36 ft.
North-South on Eastern side 25.5ft., Western Side 49 ft. totalling an extent of 1373 sq.ft.
Item No.1 and 2 totalling an extent of 3120 sq.ft. with building in Boosthhudi and with all easmentary rights including thereon.
The property situated at Puthur within limits of Tiruchirapalli Corporation."
SYMBOLIC POSSESSION NOTICE
(For Immovable Property) Rule 8(1)
LBTRI00001202123
WHEREAS the undersigned being the authorized officer of ICICI Bank Ltd., under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Second) Ordinance, 2002 (Ord.3 of 2002) and in exercise of powers conferred under Section 13(12) read with Rule 9 of the Security Interest (Enforcement) Rules, 2002 issued a demand notice dated June 29, 2013 calling upon Mr.VIVAKAR D (Borrower) & Mrs.KARPAGAM K (Co-Borrower) to repay the amount mentioned in the notice being Rs.18,46,873.86/(Rupees Eighteen Lakh Forty Six Thousand Eight Hundred and Seventy Three and Paise Eighty Six Only) within 60 days from the date of the said notice.
The borrower having failed to repay the amount, notice is hereby given to the Borrower and the public in general that the undersigned has taken symbolic https://hcservices.ecourts.gov.in/hcservices/ possession of the property described herein below in
Schedule in exercise of powers conferred on him / her under Section 13(4) of the said Act read with Rule 9 of the said rules on 22nd Oct. 2013.
The borrower in particular and the public in general is hereby cautioned note to deal with the property and any dealings with the property will be subject to the charge of ICICI Bank Limited for an amount of 18,46,873.86/- (Rupees Eighteen Lakh Forty Six Thousand Eight Hundred and Seventy Three and Paise Eighty Six Only) and interest thereon.
DESCRIPTION OF IMMOVABLE PROPERTY
SCHEDULE
As described in the loan document / property document covering PLOT NO.8, IN TS.NO.17, PARTVAYALOOR MAIN ROAD, PUTHUR, TRICHY, TRICHY-620 017, Trichy District, Trichy Taluk, Trichy Woraiyur Sub Registration District, Puthur Village within Trichy Municipal Limits Old Ward No.2, Block No.29, Old T.S.No.1446/1 Part, correspondent to New Ward C, New Block No.30, New T.S.No.17 part, Door No.6A,
SYMBOLIC POSSESSION NOTICE
WHEREAS the undersigned being the authorized officer of ICICI Bank Ltd., under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Second) Ordinance, 2002 (Ord.3 of 2002) and in exercise of powers conferred under Section 13(12) read with Rule 9 of the Security Interest (Enforcement) Rules, 2002 issued a demand notice dated June 29, 2013 calling upon Mr.VIVAKAR D (Borrower) & Mrs.KARPAGAM K (Co-Borrower) to repay the amount mentioned in the notice being Rs.23,83,478.76/https://hcservices.ecourts.gov.in/hcservices/ (Rupees Twenty Three Lakh Eighty Three Thousand Four
Hundred and Seventy Eight and Paise Seventy Three Only) within 60 days from the date of the said notice.
The borrower having failed to repay the amount, notice is hereby given to the Borrower and the public in general that the undersigned has taken symbolic possession of the property described herein below in Schedule in exercise of powers conferred on him / her under Section 13(4) of the said Act read with Rule 9 of the said rules on 22.10.2013.
The borrower in particular and the public in general is hereby cautioned note to deal with the property and any dealings with the property will be subject to the charge of ICICI Bank Limited for an amount of Rs.23,83,478.73/- (Rupees Twenty Three Lakh Eighty Three Thousand Four Hundred and Seventy Eight and Paise Seventy Three Only) and interest thereon.
DESCRIPTION OF IMMOVABLE PROPERTY SCHEDULE
As described in the loan document / property document covering PLOT NO.8, IN TS.NO.17, PARTVAYALOOR MAIN ROAD, PUTHUR, TRICHY, TRICHY-620 017, Trichy District, Trichy Taluk, Trichy Woraiyur Sub Registration District, Puthur Village within Trichy Municipal Limits Old Ward No.2, Block No.29, Old T.S.No.1446/1 Part, correspondent to New Ward C, New Block No.30, New T.S.No.17 part, Door No.6A,
Admeasuring an area of an extent of 1373 sq.ft of Land, along with the Balance portion of house out of the total extent of nearly about 3120 sq.ft. of land. Bounded by,
"9. .... The Appellants state that after filing of the above said appeal it was found that the 2nd and https://hcservices.ecourts.gov.in/hcservices/ 3rd Respondents herein have already forged and
fabricated the title deeds of the suit property and mortgaged the same with various banks and financial institutions. Now the ICICI Bank, Thillai Nagar Branch, Trichy, having office at A-10, First Floor, Lakshmi Arcade, 11th Cross Main Road, Thillai Nagar, Trichy - 620 018 and one Diwan Housing Finance Corporation Limited, having office at Sree Naga Arcade, First Floor, No.5, Williams Road, Cantonment, Trichy - 620 001 are making a claim over the suit property for various mortgages purported to have been executed by the said Dr.Vivakar with the very same document.
"M.A.89/2014
S.Karthikeyan & Anr Vs. A.O., ICICI Bank Ltd & Ors Mr.G.K.R.Pandiyan Ld. counsel for the Appellants is present.
Mr.Tamizharasan Ld. Counsel for the 1st respondent is present.
Proof of service of Respondents 2 and 3 by RPAD reflects that at "No.43, Baski Nagar, Woraiyur, Trichi - 620 003", no addressee was found.
On asking, the Ld. Counsel for the Respondent https://hcservices.ecourts.gov.in/hcservices/ Bank provided one more address of borrower is that
of his Homeopathy shop which reads as follows:
"Your Homeopathy Care, 99-A, Salai Road, Woraiyur, Trichy - 620 003."
The Ld. Counsel for the Appellants submits a set of documents including the Bank Account Certificate, Account closure statement and undertaking given by the Appellant at the time of full and final payment in the debt account.
For effective adjudication of prayer of return of documents to the Appellants, it seems necessary the borrower / Respondent should be searched efficiently and should be brought on record in this case. Hence, the Appellants are directed to take steps afresh for service of notice by RPAD on borrower / Respondent i.e. on his address of shop situated at Trichy as referred above.
List on 15.11.2016, for filing proof of service.
"M.A.90/2014
S.Karthikeyan & Anr Vs. A.O., ICICI Bank Ltd & Ors Mr.G.K.R.Pandiyan Ld. counsel for the
Appellants is present.
Mr.Tamizharasan Ld. Counsel for the 1st respondent is present.
Proof of service of Respondents 2 and 3 by RPAD reflects that at "No.43, Baski Nagar, Woraiyur, Trichi - 620 003", no addressee was found.
On asking, the Ld. Counsel for the Respondent Bank provided one more address of borrower is that of his Homeopathy shop which reads as follows:
"Your Homeopathy Care, 99-A, Salai Road, Woraiyur, Trichy - 620 003."
The Ld. Counsel for the Appellants submits a set of documents including the Bank Account Certificate, Account closure statement and undertaking given by the Appellant at the time of full and final payment in the debt account.
For effective adjudication of prayer of return of documents to the Appellants, it seems necessary the borrower / Respondent should be searched efficiently and should be brought on record in this case. Hence, the Appellants are directed to take steps afresh for service of notice by RPAD on borrower / Respondent i.e. on his address of shop situated at Trichy as referred above.
List on 15.11.2016, for filing proof of
service."
"2. The main ground for transfer is said to be the pendency of OA No.117/2010 before DRT-II, Chennai, which involves charge created over the same property owned by R2 and R3 herein from whom the Appellants have purchased the property, and has also entered into One Time Settlement (OTS), in respect of the loan account, and has paid the amount. The only thing left is to receive the title documents in respect of the mortgaged property."
S.A.Nos.235 & 236 of 2013 to be tried along with O.A.No.117 of 2010, orders have been passed. Thus, while ordering transfer as prayed for by the writ petitioners, the Appellate Tribunal has also directed Debts Recovery Tribunal - II, Chennai, to examine the OTS also.
Sd/-
Asst.Registrar
/true copy/
Sub Asst. Registrar
ars
To:
1.The Registrar,
Debts Recovery Appellate Tribunal,
Chennai
2.The Registrar,
Debts Recovery Tribunal,
Madurai.
+2ccs to Mr.G.K.R.Pandiyan, Advocate sr.9106 & 9107
W.P.Nos.3541 & 3542 of 2017
3 issues framed by the court
Whether the High Court should interfere with the orders of the Debts Recovery Appellate Tribunal which closed interim applications for record of compromise and transfer directions.
Whether there is manifest illegality in the impugned orders of the Debts Recovery Appellate Tribunal warranting intervention by the writ court.
Whether the transfer of SARFAESI appeals to be tried along with a pending Open Application justifies closing the interim applications for return of title deeds.
2 provisions across 2 enactments
S. Karthikeyan
Mrs. K. Aparna Devi
The Authorised Officer, ICICI Bank Ltd.
Dr. V. Vivakar
Mrs. Karpagam Vivakar
S. Manikumar
M. Govindaraj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
