Dismissed

Charles D. Jayaseelan v. Indian Bank

Madras HC12 Dec 2022WP(MD)/11743/2021

Case brief

AI extract

What is this about?

The Madurai Bench dismissed a writ petition challenging a Sale Notice and Sale Certificate issued by Indian Bank under the SARFAESI Act against the petitioner, who was a guarantor. The court held that the five-month delay and failure to approach the Debts Recovery Tribunal estopped the petitioner from challenging the sale, which had created third-party rights.

What did the court decide?

Writ petition dismissed; no costs; connected miscellaneous petitions closed.

Charles D. Jayaseelan Vs Indian Bank — Banking and Recovery | Madras HC (2022)

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W.P(MD)No.11743 of 2021

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 12.12.2022

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CORAM :

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THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR and THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

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W.P(MD)No.11743 of 2021 and

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WMP(MD)Nos.9230 and 9232 of 2021

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Charles D.Jayaseelan ... Petitioner

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vs.

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Indian Bank, Represented by its Authorised Officer, 197, Dindigul Main Road, Ponnagar, Tiruchirappalli-620 015.

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A.Ramesh Kumar

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M/s. Nivi Impex, Represented by its Proprietor A.Ramesh Kumar 31, Royale Enclave, Kallanlkuthu, Ariyamangalam, Tiruchirappalli-620 010.

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4.S.Santha

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... Respondents

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PRAYER : Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified

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1/7

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https://www.mhc.tn.gov.in/judis

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W.P(MD)No.11743 of 2021

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Mandamus, calling for the impugned sale notice dated 05.02.2021 on the file of the 1^st respondent and quash the same as illegal, ultravires, void abinitio, unenforceable and inexecutable and by way of Mandamus directing the 1^st respondent to set aside the registered certificate of sale bearing document No.3553/2021 dated 26.04.2021 registered before the Woraiyur Sub Registrar office executed by the 1^st respondent in favour of the 4^th respondent in respect of the property comprised in S.F.Nos.19/2C & 19/3A, Ward 53, Plot No.25 (East Part), 5^th Cross (West) Shanmuga Nagar South Extension admeasuring to an extent of 1200 sq.ft and actual constructed build up areas are ground floor 927.94 sq.ft and 1^st floor portion including corridor 1140.51 sq.ft.

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For Petitioner : Mr.Shangar Murali For R1 : Mr.R.Pandivel

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ORDER

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(Order of the Court was made by D.KRISHNAKUMAR, J.)

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Challenging the sale notice dated 05.02.2021 issued by the 1^st respondent, the petitioner has filed this writ petition seeking a consequential direction to the 1^st respondent to set aside the registered certificate of sale bearing document No.3553/2021 dated 26.04.2021 registered before the Woraiyur Sub Registrar office 2/7

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https://www.mhc.tn.gov.in/judis

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W.P(MD)No.11743 of 2021

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executed by the 1^st respondent in favour of the 4^th respondent in respect of the property comprised in S.F.Nos.19/2C & 19/3A, Ward 53, Plot No.25 (East Part), 5^th Cross (West) Shanmuga Nagar South Extension.

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Learned counsel for the petitioner submitted that the petitioner is the guarantor in respect of the loan borrowed by the 2^nd respondent who is the Proprietor of the 3^rd respondent concern. The petitioner executed equitable mortgage by deposit of title deed and agreement of guarantee in respect of his immovable property in favour of the 1^st respondent bank. The 2^nd respondent committed default, but instead of taking action against the principal borrowers/respondents 2 and 3, the 1^st respondent Bank has issued notice under Section 13(2) of the SARFAESI Act, 2002, calling upon the petitioner to pay the outstanding amount payable by the respondents 2 and 3. Thereafter, the 1^st respondent Bank issued possession notice against the petitioner on 19.05.2018 under Section 13(12) of the SARFAESI Act and on receipt of the same, the petitioner

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https://www.mhc.tn.gov.in/judis

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W.P(MD)No.11743 of 2021

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approached the 3^rd respondent to discharge the said loan amount, but he never cared to heed the petitioner's request. Learned counsel for the petitioner further submitted that the value of the petitioner's property is worth about Rs.75 Lakhs and therefore, the petitioner requested the 1^st respondent Bank to defer the auction proceedings stating that he will pay the loan amount availed by the respondents 2 and 3 within a period of six months, but the 1^st respondent without considering his request, conducted e-auction sale on 24.02.2021. Learned counsel further submitted that without following the procedure, during the pandemic situation, the 1^st respondent sold the petitioner's property for a meagre value. Further, no valuation report was obtained regarding the market value of the property and that the 1^st respondent Bank has virtually failed to follow Section 13(6) of the SARFAESI Act and allowed the 4^th respondent/auction purchaser to take possession of his property without even filing a petition under Section 14 of the SARFAESI ACT. Therefore, the petitioner has filed this writ petition.

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https://www.mhc.tn.gov.in/judis

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W.P(MD)No.11743 of 2021

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Per contra, learned standing counsel appearing for the 1^st respondent Bank submitted that pursuant to the impugned sale notice, the 4^th respondent/auction purchaser purchased the petitioner's property on 24.02.2021 and thereafter the 1^st respondent Bank has issued the sale certificate to her on 26.04.2021. However, the petitioner has filed this writ petition on 09.07.2021 after the delay of more than five months without approaching the Debts Recovery Tribunal in time and therefore, the writ petition is liable to be dismissed.

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We have heard the learned counsel appearing for the parties and perused the materials available on record.

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As rightly contended by the learned counsel for the 1^st respondent, there is a delay of more than 5 months in filing the present writ petition from the date of issuance of the sale certificate

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and that the petitioner has also not approached the Debts Recovery Tribunal within the time prescribed under the Act. Now the third party

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https://www.mhc.tn.gov.in/judis

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W.P(MD)No.11743 of 2021

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right has been created over the petitioner's property and therefore, we are not inclined to consider the prayer sought for by the petitioner.

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Hence, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

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[D.K.K.,J.] & [R.V.,J.] 12.12.2022

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Index : Yes / No Internet : Yes bala

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https://www.mhc.tn.gov.in/judis

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W.P(MD)No.11743 of 2021

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D.KRISHNAKUMAR, J. and R.VIJAYAKUMAR, J.

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bala

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ORDER MADE IN W.P(MD)No.11743 of 2021 DATED : 12.12.2022

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https://www.mhc.tn.gov.in/judis

Charles D. Jayaseelan v. Indian Bank

Case brief

What is this about?

What did the court decide?

Charles D. Jayaseelan v. Indian Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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Coram

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