S Shivakkumar vs INDIAN BANK on 10 October 2024

JUDGEMENT

1. Appeal No.2 of 2023 in SA No.665 of 2023:- This appeal has been filed under Rule 5(5) of the Debt Recovery (Procedure) Rule 1993 challenging the order of the Registrar, DRT, Madurai dated 01.06.2023 in SA Diary No. 665 of 2023 (SA SR No. 2873 of 2023.

2. The brief averments of the Application filed by the Appellant are as follows:- The Ld. Counsel appearing for the Appellant submitted that the point for consideration is the SA is barred by limitation or not. The Registrar passed the order dated 01.06.2023 in SA Diary No. 665 of 2023 (SASR No. 2873 of 2023) without providing an opportunity, without hearing the Appellant and violation of principles of natural justice.

The Appellant further submitted that he is the founder of the partnership firm and the owner for the collateral property of the firm, SS Impex. And, the 3rd Respondent colluded with the bank officials of the 2nd Respondent branch and obtained the loan and cheated the bank and the Appellant. The 1st Respondent issued the Demand Notice on 07.01.2022 U/s. 13(2) of the SARFAESI Act, 2002. But till date the Authorized Officer not made any reply U/s. 13(3A) of SARFAESI Act, 2002. But, in violation of the section 13(3A), the bank issued the Impugned Possession Notice dated 14.03.2022, U/s. 13(4) of SARFAESI Act is contrary to the provisions of the act and the bank officials of the 2nd Respondent branch colluded with the 3rd Respondent and siphoned the firms amount to the various private individuals, i.e. close relative of the 3rd Respondent.

It is further submitted that the Applicant filed a Writ Petition in W.P. (MD) No. 4812 of 2023 and W.M.P. (MD) No. 4596 of 2023 on 08.03.2023 and the Writ Petition allowed on 10.04.2023 as follows:

"This Court has, on several occasions, pointed out that the minimum requirement is that the order should contain at least the description of the property. Though the Petition filed by the Bank before the Ld. Chief Judicial Magistrate contains the description of the property, the same is not reflected in the order. Hence, we have no other option to set aside the order passed in Crl.M.P.No. 488 of 2022, 26.10.2022. Accordingly, this Writ Petition is allowed and the order dated 26.10.2022 made in Crl.M.P.No. 488 of 2022, by the Ld. Chief Judicial Magistrate Thanjavur at Kumbakonam, is set aside. The Petition in Thanjavur at Kumbakonam, to pass appropriate orders incorporating the receipt of a copy of this order. The other grounds of challenge are left open. No Costs. Consequently, connected miscellaneous Petition is closed".

But the Chief Judicial Magistrate, Thanjavur at Kumbakonam proceeds with the case without considering the direction issued by the Hon'ble High Court. The Hon'ble High Court also observed that the other grounds of challenge are left open.

It is further submitted that he filed the Application U/s. 17(1) of the SARFAESI Act before this Hon'ble Tribunal to quash the impugned proceedings in Crl.MP. No. 488 of 2022 on the file of Chief Judicial Magistrate, Thanjavur at Kumbakonam consequent to the Possession Notice dated 14.03.2022 issued by the 1st Respondent and from initiating any further proceeding in respect of the Schedule property under the Act pending disposal of the above appeal. The CJM, Thanjavur at Kumbakonam even till date not incorporated the Schedule of Property as pointed out by the Hon'ble High Court vide order dated 10.04.2023 in WP (MD) No. 4812 of 2023 and W.M.P. (MD) No. 4596 of 2023.

The Appellant further submitted that the proceedings in Crl.MP.No. 488 of 2022 is pending before the court at enquiry stage and next hearing date on 19.05.2023, hence, he filed the Application on 11.05.2023 for quash the CJM, Thanjavur at Kumbakonam, calculating the limitation from the last date of hearing 14.03.2023 or from the next date of hearing 19.05.2023. But the Registry return the paper on 15.05.2023 stating that barred by limitation without considering the point that the continuous cause of auction applicable for DRT proceedings.

Hence, the Appellant with the detailed reply stating that the registry posted before the Hon'ble Presiding Officer for maintainability on 19.05.2023 and the Application further remanded back to the Registry for passing the Order under Rule 5(4) of the Debt Recovery (Procedure) Rule 1993, but the registry without providing any opportunity, in violation of principals of natural justice passed the present ex-party order on 01.06.2023 in SA Diary No. 665 of 2023 (SA SR No. 2873 of 2023). Aggrieved by the said order the present appeal had been preferred on the amongst the following other grounds Main Grounds:-

i. The Order dated 01.06.2023 issued by the Registrar is bad in law and facts of the case. ii. The Registrar without providing any opportunity to the Applicant, without hearing the Applicant and in violation of the principles of natural justice passed the ex-party order on 01.06.2023 in SA No. 665 of 2023 (SASR No. 2873 of 2023). iii. The Registrar ought to have granted an opportunity after the order of remand made by the Hon'ble Presiding Officer. iv. The Registrar failed to note the collusion between the banking officials with the 3rd Respondents.

5. Having heard the parties and after going through the record, I find that the Applicant has challenged the Ld. CJM Order by filing this SA, which was not numbered by the Registrar stated therein that it is barred by limitation. I also find that the Applicant had already challenged the Ld.

CJM Order by filing a Writ Petition, i.e. in W.P. (MD) No. 4812 of 2023 and W.M.P. (MD) No. 4596 of 2023 on 08.03.2023 before the Hon'ble High Court of Madras (Madurai Bench) and an Order were passed by the Hon'ble High Court on 10.04.2023, stated therein that the Petition in Crl.M.P.No. 488/22 is remitted back to the Ld. CJM, Thanjavur at Kumbakonam to pass an appropriate Order incorporating the schedule of Property within a period of 4 weeks from the receipt of copy of this Order by setting aside the Order of the Ld. CJM, Thanjavur at Kumbakonam dated 26.10.2022.

Thereafter, the Applicant has filed this SA to quash the proceeding of the Ld. Chief Judicial Magistrate. The Section 17(1) of SARFAESI Act, 2002 is very clearly says that, "17. Application against measures to recover secured debts.

(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application alongwith such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken: [Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.] [Explanation. For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub- section.] "

In view of the above provision, I find that the Applicant has challenged the proceeding on the file of the Ld. CJM, Thanjavur at Kumbakonam, which is at enquiry stage. So, the Applicant has not filed any Order passed by the Ld. CJM as directed by the Hon'ble High Court of Madras (Madurai Bench). Instead, he has filed a proceeding, which is yet to be decided. Hence no cause of action has been aroused. So, I do not find any merit in the Appeal filed by the Appellant. The Registrar has rightly not numbered the SA.

Accordingly, this Appeal No. 2 of 2023 stands dismissed. Dictated to PA (DK), taken down, transcribed, typed by her, corrected and pronounced by me in the Open Court in this the 10th October, 2024.

sd/- (SEEMA SINHA) PRESIDING OFFICER

Dictated & Corrected by me

sd/- (SEEMA SINHA) PRESIDING OFFICER

Typed by me (D. Krishnaveni, PA)

Order uploaded on 22.10.2024