Mr.A.Akthar Hussain v. K.Pappireddiyar,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2021 CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY W.P.Nos.26633 and 32208 of 2014 W.P.No.26633 of 2014:
A.Akthar Hussain
...Petitioner
-vs1.K.Pappireddiyar 2.Indian Bank, rep. by its Chairman and Managing Director, Chennai - 600 001.
3.The Authorised Officer and Chief Manager, Indian Bank, Asset Recovery Management Branch-II, No.55, Ethiraj Salai, Chennai - 600 008.
4.The Registrar, The Debt Recovery Appellate Tribunal, No55, Ethiraj Salai, Indian Bank Building, 4th Floor, Wellington Estate, Egmore, Chennai - 600 008.
...Respondents
W.P.No.32208 of 2014:
1.Indian Bank, rep. by its Chairman and Managing Director, Chennai-1.
2.The Authorized Officer and Chief Manager, Indian Bank, Asset Recovery Management Branch-II, No.55, Ethiraj Salai, Chennai - 600 008.
...Petitioners
-vs1.K.Pappireddiyar 2.A.Akthar Hussain
...Respondents
W.P.No.26633 of 2014 filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari calling for the records on the file of the Debt Recovery Appellate Tribunal, Chennai in respect of order dated 11.09.2014 made in RA(SA) No.43/2014 in S.A.No.118/2013 on the file of DRT3, Chennai and quash the same. W.P.No.32208 of 2014 filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari calling for the records relating to R.A. (SA) No.43 of 2014 dated 11.09.2014 on the file of the Debts Recovery Appellate Tribunal at Chennai, quash the same.
W.P.No.26633 of 2014:
For Petitioner : Mr.D.Durairaj For Respondents : Mr.G.Sai Baba for respondent No.1 : Mr.Jayesh B.Dolia for respondent Nos.2 and 3 W.P.No.32208 of 2014:
For Petitioners : Mr.Jayesh B.Dolia For Respondents : Mr.G.Sai Baba for respondent No.1 : Mr.D.Durairaj for respondent No.2 COMMON ORDER (Order of the Court was made by The Hon'ble Chief Justice) These two writ petitions arise out of a common order of the Debt Recovery Appellate Tribunal dated September 11, 2014. By such order, the appeal before the Debt Recovery Appellate Tribunal was allowed and the confirmation of the sale of the
secured asset by the Debts Recovery Tribunal-III in Chennai dated May 17, 2013 set aside on the ground that the secured asset was an agricultural land.
2. The present writ petitions were filed by the auctionpurchaser and by the secured creditor. The borrower no longer wishes to pursue the borrower's case that the secured asset being agricultural, the same could never had been sold in pursuance of the secured creditor's claim. According to the affidavits filed in the two matters by the borrower, he has aged and is no longer desirous of pursuing the matter. It is, however, indicated in the affidavits that the bank should refund the monies deposited by the borrower.
3. Both the auction-purchaser and the bank are represented.
4. In view of the stand indicated on affidavit by the borrower, the order impugned dated September 11, 2014 passed by the Debt Recovery Appellate Tribunal is set aside and the order of the Debts Recovery Tribunal-III dated May 17, 2013 restored. As a consequence, the sale of the relevant property stands confirmed in favour of the auction-purchaser A.Akthar Hussain. The bank will take immediate steps to ensure that the property is made over to the purchaser and sale certificate executed. If the purchaser requires a deed of conveyance to be executed, the secured creditor should comply with such request.
5. There is another aspect of the matter that cannot be left open-ended. There is no doubt that the secured creditor cannot unjustly enrich itself by retaining the consideration paid by the auction-purchaser and also retaining the deposits made in lieu of repayment by the borrower. It would be just and equitable if the claim of the bank is adjusted against the consideration made over by the auction-purchaser. In the event the entire consideration tendered for the property falls short of the claim of the bank as on the date of the last part of the consideration being tendered, the bank will deduct such amount from the monies deposited by the borrower as would satisfy the bank's claim and make over the remainder with interest thereon at the rate of 7% per annum to the borrower.
If, however, the entire claim of the bank stands satisfied by the consideration for the property tendered by the auction-purchaser and there is any excess on such account which has been received by the bank, the entire monies deposited in lieu of repayment together with excess consideration should be made over to the borrower with interest at the rate of 7% per annum.
6. This order is made since the money would have been remained in the bank for a considerable period of time and even a refund of the money, deposited in a no lien account, would
entitle the depositor to reasonable return thereon, though not matching the high rate of interest charged by banks in according credit facilities.
7. W.P.Nos.26633 and 32208 of 2014 are disposed of. It is hoped that the balance amount is refunded to the borrower within a period of four weeks from date together with the fullest accounts to justify the quantum being refunded. There will be no order as to costs.
Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar bbr To:
1.The Chairman and Managing Director, Indian Bank, Chennai - 600 001.
2.The Authorised Officer and Chief Manager, Indian Bank, Asset Recovery Management Branch-II, No.55, Ethiraj Salai, Chennai - 600 008.
3.The Registrar, The Debt Recovery Appellate Tribunal, No55, Ethiraj Salai, Indiab Bank Building, 4th Floor, Wellington Estate, Egmore, Chennai - 600 008.
+2cc to Mr.G.Saibaba, Advocate,Sr.25167 +1cc to Mr.D.DUrairaj, Advocate,Sr.25126 W.P.Nos.26633 and 32208 of 2014 JP[co] NSK 06/08/2021