Petitioner, an auction purchaser under SARFAESI, sought Writ of Mandamus for delivery of property possession. Court observed possession was already acknowledged in Sale Certificate and noted SARFAESI mechanism for recovery. Petition dismissed.
Writ Petition, connected Miscellaneous Petitions, and no costs allowed.
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W.P(MD)NO.20235 OF 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:03.01.2022
CORAM:
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.P(MD)NO.20235 OF 2021 and
W.M.P(MD)Nos.16909 and 18656 of 2021
K.Abdul Sukkoor
:Petitioner
.vs.
1.The Authorized Officer, State Bank of India, Zonal Office, Regional-I, Madhuram Complex, No.2, Dr.Ambedkar Road, Madurai-2.
2.The Branch Manager, State Bank of India, Madurai ADB. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus directing the respondents to hand over the possession of the property in Old Ward No.34, New Ward No.86, Madurai Town Survey Ward No.4, Kazmiar Street Third Line, House bearing Door No.76,B comprosing in T.S.No.1134 to an extent of 484 sqare feet to the Petitioner in the light of the order made in W.P(MD)No.11669 of 2019, dated 24.08.2021 passed by this Court.
For Petitioner :M/s.Ajmal Associates For Respondents :Mr.C.Karthick 1 and 2
**O R D E R ***********
(Order of the Court was made by PUSHPA SATHYNARAYANA,J)
This Writ Petition is filed by the auction purchaser in a SARFAESI proceedings seeking a direction to the respondents/Bank to hand over the possession of the property, which was the subjecthttps://hcservices.ecourts.gov.in/hcservices/ matter in the Sale Certificate issued by them.
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2.Heard the learned counsel appearing on either side and perused the materials placed before this Court.
3.Earlier, the Writ Petitioner had filed W.P(MD)No.11660 of 2019 challenging the order passed by the Debts Recovery Appellate Tribunal, in which, the the Division Bench of this Court had allowed the Writ Petition by setting aside the relevant para No.16 of the order, dated 27.02.2019 passed by the Debts Recovery Appellate Tribunal. The Division Bench had confirmed the sale in favour of the Writ Petitioner and also specifically mention that the right of redemption is already extinguished. Though a review was filed against the said order, the same was dismissed on 26.10.2021. Whileso, the above Writ Petition is filed on 1.11.2021 seeking direction to the Bank to delivery the possession of the property.
4.It is not out of place to mention that the District Collector, Madurai had passed an order by proceedings, dated 25.06.2012, which was passed under Section14 of the SARFAESI Act. In the order passed by the District Collector, Madurai, there is a direction specifically given to the Commissioner of Police, Madurai City to provide adequate Police protection to the Bank officials at the time of taking possesion of the property in question.
5.The learned counsel appearing for the respondents/Bank would contend that after this order, possession was taken by the Bank. This is also confirmed by the Sale Certificate issued in favour of the Petitioner, wherein, it has been stated that '' the undersigned hereby acknowledges the receipt of the sale price of Rs.40,30,000/(Rupees fourty lakhs and thirty thousand only) in full and handed over the delivery and possession of the schedule property''. So, even in the sale deed, it is mentioned that the delivery of possession was handed over to the purchaser.
6.So we are unable to understand as to why this Writ Petition is filed again for handing over delivery of the possession. Even presuming that delivery is not effected to the Petitioner, it is always open to the Petitioner to move the Debts Recovery Tribunal to seek any such relief for delivery of possession of the property. It is the duty of the Bank which has brought the property to sale to hand over the possession of the property to the auction purchaser. When the statute itself has got a mechanism to take physical possesion of the property and if the Bank has failed to do the same, it is answerable to the auction purchaser. After the order under Section 14 of the SARFAESI Act has been obtained, still the Bank says that it is a symbolic possesion, it is the failure on the part of the Bank and for that, the system cannot be blamed.
7.Therefore, it is for the respondents/Bank to take appropriate steps to take delivery of possession of the property and https://hcservices.ecourts.gov.in/hcservices/ hand it over to the auction purchaser. It is open to the petitioner
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as well as the respondents/Bank to approach the Debts Recovery Tribunal, for any appropriate relief in that regard.
8.With the above observations, the Writ Petition stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are dismissed.
Sd/-
Assistant Registrar (AD-II)
// True Copy //
/ /2022 Sub Assistant Registrar(CS)
vsn
Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
+1 CC to M/s.AJMAL ASSOCIATES, Advocate (SR-136[F] dated 04/01/2022)
0RDER MADE IN W.P(MD)NO.20235 OF 2021 and W.M.P(MD)Nos.16909 and 18656 of 2021 03.01.2022
MMS (CO)
GC(11.01.2022) 3P 2C
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2 issues framed by the court
Whether the Court should issue a Writ of Mandamus directing the Bank to hand over possession of the property to the auction purchaser despite previous orders and sale certificates.
Whether the petitioner can rely on Section 14 of the SARFAESI Act to demand physical possession from the Bank.
K.Abdul Sukkoor
The Authorized Officer, State Bank of India, Zonal Office, Regional-I, Madurai
The Branch Manager, State Bank of India, Madurai ADB
PUSHPA SATHYNARAYANA
P. VELMURUGAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
