K. Rajendram, v. The Recovery Officer,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU AND THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY W.P(MD)NO.692 OF 2019 and W.M.P(MD)No.580 of 2019 K.Rajendran :Petitioner .vs.
1.The Recovery Officer, Debts Recovery Tribunal, Madurai.
2.The Branch Manager, State Bank of India, Chinnamanur Branch, Chinnamanur, Theni District.
: Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus to call for the impugned proclamation of Sale Notice in R.P.No.465 of 2018 in DRC No.465 of 2018, dated 17.12.2018 issued by the first respondent and to quash the same insofar as the Petitioner is concerned, as illegal and consequently, to forbear the respondents from proceeding with the proclamation of sale dated 18.01.2019 till the disposal of I.A.No.2947 of 2018 in O.A.No.983 of 2015, pending on the file of the Debt Recovery Tribunal, Madurai.
For Petitioner :Mr.M.Maran For Respondent-2 :Mr.N.Dilip Kumar Standing Counsel
O R D E R
[Order of the Court was made by K.RAVICHANDRABAABU.,J.] Being aggrieved against the issuance of notice for drawing proclamation of sale, dated 17.12.2018, this Writ Petition is filed challenging such notice issued by the first respondent, with
consequential relief to forbear the respondents from proceeding with the proclamation of sale, till the disposal of I.A.No.2947 of 2018 in O.A.No.983 of 2015, pending on the file of the Debts Recovery Tribunal, Madurai.
2.Heard both sides.
3.The Petitioner and his brothers obtained Agricultural Term Loan from the second respondent/Bank by creating mortgage by deposit of title deeds. The second respondent/Bank, due to nonpayment of the loan amount, treated the Petitioner and his brothers as defaulters and filed Original Petition in O.A.No.983 of 2015 before the Debts Recovery Tribunal, Madurai, by invoking Section 19(1) of Recovery of Debts Due To Banks and Financial Institutions Act,1993, claiming a sum of Rs.11,43,649/- with subsequent interest at 12% p.a. In the said Original Application, the Petitioner was set ex-parte on 17.04.2017 due to his non-appearance. Consequently, an ex-parte decree was passed by the Debts Recovery Tribunal, Madurai on 27.10.2018, thereby granting decree in favour of the second respondent/Bank for recovery of Rs.11,43,649/- together with interest at 12% p.a from the defendants.
4.The Petitioner filed I.A.No.2947 of 2018 on 24.11.2018 seeking to set aside the ex-parte decree. It is stated that the said application is still pending before the Debts Recovery Tribunal, Madurai.
5.The learned counsel for the second respondent/Bank is not disputing the said fact. However, pending consideration of the said application before the Debts Recovery Tribunal, Madurai, notice for proclamation of sale was issued on 17.12.2018, which is put to challenge in this Writ Petition.
6.The main grievance of the Petitioner is that when the application seeking to set aside the ex-parte decree was filed in time and still pending for consideration, issuance of the impugned proclamation of sale notice is not proper and justifiable, which causes great hardship to the Petitioner. It is contended that further proceedings in pursuant to the impugned notice should be deferred till the Debts Recovery Tribunal, Madurai, passes an order in I.A.No.2947 of 2018.
7.The learned counsel for the second respondent/Bank, though admitted the fact that I.A.No.2947 of 2018 is still pending,however, submitted that the Petitioner and his brothers having defaulted in repaying the loan amount, are not entitled to seek indulgence from this Court, as against the impugned notice without showing their bona-fide by making some payment, even for the purpose of directing the Debts Recovery Tribunal, Madurai to take up the I.A.No.2947 of 2018 and decide the same on merits and in accordance with law.
8.Upon hearing both sides and perusing the materials placed before this Court, it is evident that though an ex-parte decree was passed against the Petitioner on 27.10.2018, he has filed an application to set aside the same on 24.11.2018 itself, admittedly within a period of thirty days. It is also not in dispute that the said application is still pending for consideration. Needless to state that the Debts Recovery Tribunal, Madurai has to take up the said application and dispose the same on merits and in accordance with law, so as to make the parties to understand as to where do they stand in their respective claim. At the same time, this Court is of the view that the Petitioner who has claimed to be a defaulter also should be put on some terms for remitting the matter back to the Debts Recovery Tribunal, Madurai, for disposal of the said I.A.
9.Accordingly, this Writ Petition is disposed of, in the following terms:
(a)the Petitioner shall pay a sum of Rs.3 lakhs(Rupees three lakhs only) to the second respondent/Bank within a period of four weeks from the date of receipt of a copy of this order. (b)on making such payment and filing proof of the same, the Debts Recovery Tribunal, Madurai will take up I.A.No.2947 of 2018 and dispose of the same on merits and in accordance with law, after hearing both parties within a period of four weeks thereafter.
(c)if the Petitioner fails to make the payment of Rs.3 lakhs within the time stipulated supra, the second respondent/Bank is at liberty to proceed with the impugned notice. (d)if the Petitioner makes the payment, as directed supra, the impugned proclamation of sale notice, dated 17.12.2018 shall be kept in abeyance, till an order is passed by the Debt Recovery Tribunal in I.A.No.2947 of 2018 in O.A.No.983 of 2015. No costs. Consequently, connected Miscellaneous Petition is closed.
Sd/- Assistant Registrar () // True Copy // Sub Assistant Registrar(CS) vsn
To 1.The Recovery Officer, Debts Recovery Tribunal, Madurai.
2.The Branch Manager, State Bank of India, Chinnamanur Branch, Chinnamanur, Theni District.
+1 CC to Mr.M.MARAN, Advocate SR-74712.
+1 CC to Mr.N.DILIP KUMAR, Advocate SR-74964. 0RDER MADE IN W.P(MD)NO.692 OF 2019 and W.M.P(MD)No.580 of 2019 11.07.2019 CS(24.07.2019) 4P 5C