J.Shanthi v. The Authorized Officer
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2024 CORAM :
THE HON'BLE MR. JUSTICE S.S.SUNDAR AND THE HON'BLE MR.JUSTICE N.SENTHILKUMAR J.Shanthi ..
Petitioner v.
1. The Authorized Officer Union Bank of India Asset Recovery Branch No.09, Elconso Building Casa Major Road, Egmore Chennai 600 008
2. The Chief Manager Union Bank of India Asset Recovery Branch No.09, Elconso Building Casa Major Road, Egmore Chennai 600 008 ..
Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, to direct the respondents to consider the petitioner's representation dated 28.10.2022 within the stipulated time and consequently direct the respondents to refund the sum of Rs.26,33,400/- paid by the petitioner while participating in the auction sale
held on 20.07.2022, together with interest at the rate of 24% per annum from 20.07.2022 till the date of repayment.
For Petitioner ::
Ms.R.Sowmiya for Mr.G.M.Gokul Ram For Respondents ::
Mr.R.Santhanam
ORDER
(Order of the Court was made by S.S.SUNDAR,J.) This writ petition is filed for issuance of a mandamus to the respondents to consider the petitioner's representation dated 28.10.2022 and to refund the amount deposited by the petitioner along with interest.
2. The learned counsel appearing for petitioner states that the encumbrance, according to the encumbrance certificate issued to the petitioner, shows that the same property was attached by a different bank in their action to recover some dues as against the same borrower.
3. The mortgage that was executed in favour of the respondent Bank is not in dispute. Therefore, that mortgage was long prior to any action initiated by the third party bank as against the borrower. Hence the property
that was purchased by the petitioner in public auction is not encumbered. Since the encumbrance is nothing but an order of attachment that was not binding on the mortgagee and the position was also clarified by the respondent Bank, this Court is unable to accept the contention of the petitioner that the property is encumbered and that therefore the petitioner is unable to pay the balance. The petitioner has not produced before this Court even a statement or anything to show that the petitioner had sufficient money to pay the balance amount after the earnest money deposit and the initial payment on confirmation of the sale. In the absence of any evidence that the petitioner was ready and willing to get the sale certificate from the respondent Bank, the petitioner has made an attempt to wriggle out of her contractual obligations.
As per the agreement, the petitioner has undertaken to pay the balance on confirmation of sale within the stipulated time. In case the petitioner is unable to pay, the respondents are also entitled to forfeit the earnest money deposit and further payment made by the petitioner, if it is permissible in accordance with law. This Court, having regard to the facts narrated and the points argued, is unable to find any merit in this writ petition. Hence, the writ petition is dismissed.
the respondent Bank to proceed with the sale and if required or permissible to forfeit the earnest money deposit plus the further payment made by the petitioner, after giving an opportunity to the auction purchaser to put forth her case. No costs.
Index : yes/no (S.S.S.R.,J.) (N.S.,J.) 04.07.2024 ss To
1. The Authorized Officer Union Bank of India Asset Recovery Branch No.09, Elconso Building Casa Major Road, Egmore Chennai 600 008
2. The Chief Manager Union Bank of India Asset Recovery Branch No.09, Elconso Building Casa Major Road, Egmore Chennai 600 008
S.S.SUNDAR,J.
AND N.SENTHILKUMAR,J.
ss 04.07.2024