At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE D. MURUGESAN & THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
For the Petitioner: S.V. Jayaraman, Senior Counsel for S. Kolandasamy, Advocate. For the Respondents: R2, A.V. Radhakrishnan, Advocate.
(Prayer: Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records in S.A.No. 84 of 2011 Docket order dated 23.11.2011 passed by the Debt Recovery Tribunal-I, Chennai and quash the same.)
K.K. Sasidharan, J.
This writ petition is directed against the order dated 23.11.2011, whereby and whereunder the petitioner was directed to deposit a sum of Rs.26,00,000
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- on or before 30.12.2011 as a condition precedent for staying the auction proceedings initiated by the record respondent-Bank.2. The petitioner availed financial assistance from the second respondent Bank. Since there was default in making repayments, the bank initiated proceedings under Section 13(2) of the SARFAESI Act. The notice issued by the bank was challenged by the petitioner in S.A.No. 84 of 2011 before the Debts Recovery Tribunal. Before the Tribunal, the petitioner contended that the entire amount sanctioned by the bank was not paid by the then Manager. The Manager took three blank cheque leaves from the petitioner and on the basis of those three cheque leaves, a sum of Rs.18,00,000/- was withdrawn by the then Manager through his son-in-law and daughter and as such, he is not liable to pay the entire balance amount. The Tribunal, having considered the said submission, directed the petitioner to pay a sum of Rs. 26,00,000/- on or before 30.12.2011. The bank was restrained from proceeding with the auction proceedings pending deposit of the said amount. Time was later extended as per order dated 2.1.2012. The earlier order dated 23.11.2011 is challenged in the present writ petition on the ground that the petitioner is made liable to pay a sum of Rs.18,00,000/- which was not paid by the then Manager of the bank.3. The second respondent filed a counter affidavit denying all the contentions raised in the writ petition. According to the bank, the petitioner agreed to pay the entire amount as demanded by the bank and that was the reason for passing orders by the Debt Recovery Tribunal. According to the bank, it was in the nature of concessional order passed at the instance of the petitioner and as such no interference is called for in the present writ petition.4. The learned senior counsel appearing for the petitioner contended that the petitioner is prepared to pay the entire amount as disbursed by the bank. The bank had already initiated action against the then Manager and he was subsequently terminated from service. Therefore, the bank was not justified in demanding a sum of Rs.18,00,000/- from the petitioner.5. The learned counsel appearing for the second respondent-Bank would submit that the petitioner has agreed to pay the entire amount and in fact, the complaint preferred against the Ombudsman has already been withdrawn by the petitioner indicating that he has no grievance against the bank. Therefore, the petitioner is bound to pay the entire amount as undertaken by him.6. The order passed by the Debts Recovery Tribunal on 23.11.2011 was on the basis of the submission made by the petitioner that he is prepared to pay a sum of Rs.26,00,000/-. The petitioner, having not paid the said amount, sought for extension at least on two occasions. The immediate provocation for filing the writ petition appears to be on Account of the non-posting of Presiding Officer for the Debts Recovery Appellate Tribunal. The petitioner raises certain disputed questions with regard to the actual amount received by him. The bank disputes the said contention on the ground that the petitioner himself has agreed to pay the entire amount and therefore there was no bona fides in the said contention. The matter requires consideration of facts. The petitioner is having a remedy of appeal against the impugned order before the Debts Recovery Appellate Tribunal. Therefore, we are not inclined to adjudicate the factual matrix involved in the present writ petition.7. Accordingly, liberty is granted to the petitioner to file appeal before the Debts Recovery Tribunal on or before 23.04.2012 as against the impugned order. At the time of entertaining this writ petition on 9.1.2012, this Court had granted interim order of stay of the impugned order. As we are now giving liberty to the petitioner to work out his remedy by way of appeal, the said interim order will continue till 23.04.2012. The writ petition is disposed of accordingly. Consequently, M.P.Nos.1 & 2 of 2012 are closed. No costs.