w w w . L a w y e r S e r v i c e s . i n



M/s. Velar Engineering Works Pvt. Ltd., Rep by its Managing Director A.C. Vadhivelu v/s The Authorized Officer/Chief Manager, Indian Bank, Kanchipuram & Others

    C.R.P.(NPD). Nos. 3785, 3786, 3787 of 2012 & W.P. No. 31251 of 2018 & W.M.P. No. 36436 of 2018

    Decided On, 05 September 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE CHIEF JUSTICE MRS. VIJAYA K. TAHILRAMANI & THE HONOURABLE MR. JUSTICE M. DURAISWAMY

    For the Petitioner: Om Prakash, Senior Counsel, Anuradha Balaji, Advocate. For the Respondents: R1 to R3, A.L. Somayaji, Senior Counsel, T. Sunder Rajan, R5, Dr. R. Meenakshi Sundaram, R6 & R7, Sudharsana Sundar, R4, Ravi for M/s. Gupta & Ravi, Advocates.



Judgment Text

(Prayer: C.R.P.(NPD).No.3785 of 2012 filed under Article 227 of the Constitution of India against the dismissal order dated 10.09.2012 passed by the Presiding Officer DRT -III, Chennai in I.A.No.530 of 2011 in S.A.SR.No.3957 of 2011.

C.R.P.(NPD).No.3786 of 2012 filed under Article 227 of the Constitution of India against the proceedings in DRT -III before the Presiding Officer DRT - III, Chennai in I.A.No.160 of 2012 in S.A.SR.No.740 of 2012.

C.R.P.(NPD).No.3787 of 2012 filed under Article 227 of the Constitution of India against the order dated 10.09.2012 in I.A.No.161 of 2012 in S.A.SR.No.742 of 2012 passed by the Presiding Officer DRT -III, Chennai.

W.P.No.31251 of 2018 filed under Article 226 of the Constitution of India praying for issue of Writ of certiorari to call for the records pertaining to the impugned order dated 14.11.2018 passed in R.A.(SA).No.269 of 2010 on the file of the 8th respondent herein and to quash the same in so far as the declining of the relief relating to the finding against the possession notices dated 04.03.2009 and 09.03.2009 being the underlying action under SARFAESI as against the properties set out therein.)

Common Order

V.K. Tahilramani, CJ & M. Duraiswamy, J.

1. The petitioner - borrower has filed the above Writ Petition to issue a Writ of certiorari to call for the records pertaining to the impugned order dated 14.11.2018 passed in R.A.(SA).No.269 of 2010 on the file of the 8th respondent and to quash the same in so far as the declining of the relief relating to the finding against the possession notices dated 04.03.2009 and 09.03.2009 being the underlying action under SARFAESI as against the properties set out therein.

2. The facts necessary for the disposal of the Writ Petition are as follows:

2.1. The petitioner -Company availed loan facilities from the respondent - Bank on 23.03.2008 and one Mr.A.C.Vadivelu and Ms.Priyadarshini stood as guarantors for the said loan facility availed by the petitioner. Subsequently, the loan amount was enhanced to Rs.377.86 lakhs on 07.05.2008. On 28.03.2008, the borrower and the guarantors created an equitable mortgage of three properties (i.e.) one at SIPCOT, Sriperumbudur, Tamil Nadu, one at Imperial Homes, Bangalore and another property at Siddiah Road, Bangalore as security for the loan facilities. Since the petitioner - Company defaulted in repaying the loan amounts, the respondent - Bank classified the loan account as Non-Performing Assets on 30.09.2008. Further, on 20.11.2008, when the Bank inspected the business unit, it was found that the Company was not functional and there was no stock in the petitioner -Company. On 26.12.2008, the respondent - Bank issued a Demand Notice under Section 13(2) of the SARFAESI Act calling upon the petitioner and the guarantors to pay a sum of Rs.3,87,58,986/-. However, the petitioner failed to comply with the demand made by the respondent – Bank.

2.2. It is the case of the respondent -Bank that they issued a notice under Section 13(4) of the SARFAESI Act on 04.03.2009 in respect of two properties at Bangalore and another Possession Notice dated 09.03.2009 in respect of the SIPCOT property at Sriperumbudur, Tamil Nadu. The paper publications were made on 10.03.2009 in respect of the property viz., Imperial Homes, Bangalore and 13.03.2009 in respect of the SIPCOT property at Sriperumbudur, Tamil Nadu. So far as the property at Siddiah Road, Bangalore, the paper publication was effected on 18.03.2009. Subsequently, on 12.05.2009, the Bank issued the sale notice in respect of the Bangalore properties. On 29.05.2009, the Bank issued the Sale Notice in respect of the SIPCOT property at Sriperumbudur, Tamil Nadu. On 18.06.2009, the petitioner filed the Securitisation Appeal in S.A.No.88 of 2009 on the file of the Debts Recovery Tribunal -III, Chennai challenging the Sale Notices dated 12.05.2009 and 29.05.2009.

2.3. It is pertinent to extract the prayer sought for in the Securitisation Appeal, which reads as follows:

“Reliefs sought for:

In view of the facts and grounds mentioned above in paragraph V, the Appellant pray for the following reliefs:

a) To set aside the Sale Notices dated 12.5.2009 by the 3rd Respondent and 29.5.2009 by the 1st Respondent respectively under section 13[4] of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act, 2002 in respect of movable and immovable properties described in the schedule hereunder and consequently declare that the action taken by the Respondents under SARFAESI Act is null and void.

b) Cost of the appeal and

c) To pass such further or other orders as this Hon’ble Tribunal may deem fit and proper and thus render Justice.”

2.4. The Debts Recovery Tribunal -III, Chennai, by order dated 13.11.2009, allowed the Securitisation Appeal in S.A.No.88 of 2009 and set aside the Sale Notices dated 12.05.2009 and 29.05.2009 putting the clock back for taking action by the respondent -Bank afresh for sale of the secured assets according to law.

2.5. Challenging the order passed by the Debts Recovery Tribunal, the petitioner preferred an appeal in R.A.(SA).No.269 of 2010 on the file of the Debt Recovery Appellate Tribunal, Chennai. In the appeal filed before the Debt Recovery Appellate Tribunal, the petitioner challenged the order of the Debts Recovery Tribunal declining to quash the entire action taken by the respondent -Bank including the Possession Notices dated 04.03.2009 and 09.03.2009. The Appellate Tribunal, by order dated 14.11.2018, confirmed the order of the Debts Recovery Tribunal and dismissed the appeal. Challenging the said order, the petitioner -borrower has filed the above Writ Petition.

3. Mr.Om Prakash, learned senior counsel appearing for the petitioner submitted that in the Securitisation Appeal in S.A.No.88 of 2009, though the petitioner has challenged the Sale Notices dated 12.05.2009 and 29.05.2009 in respect of the movable and immovable properties, consequently, they sought to declare the action taken by the respondent -Bank under the SARFAESI Act as null and void, therefore, the Tribunals below should also have set aside the Possession Notices.

3.1. In support of his contention, the learned senior counsel relied upon the judgment reported in 2018 (6) CTC 1 [Bharath Posts Graduate College through its Authorized Signatory, SPE Trust Vs. India Bulls Housing Finance Limited rep by its Manager and others] wherein the Division Bench of this Court held as follows:

“...

38. Material on record indicates that the possession notice though dated 16.05.2017 is sent by post only on 18.05.2017 and was delivered on 22.05.2017. The sale notice was issued on 19.05.2017 that is before the possession notice was delivered. Rule 8(1) and 8(2) of the Security Interest

(Enforcement) Rules 2002 read as under:-

“8. Sale of immovable secured assets:- (1) Where the secured asset is an immovable property, the authorised officer shall take or cause to be taken possession, by delivering a possession notice prepared as nearly as possible in Appendix IV to these rules, to the borrower and by affixing the possession notice on the outer door or at such conspicuous place of the property.

(2) The possession notice as referred to in sub-rule (1) shall also be published, as soon as possible but in any case not letter than seven day from the date of taking possession, in two leading newspapers], one in vernacular language having sufficient circulation in that locality, by the authorised officer.”

39. The question that arises is whether affixure of the possession notice alone is sufficient compliance of Rule 8(1) and whether the sale notice can be issued after affixing of notice but before the actual delivery of the possession notice. Rule 8(1) stipulates that the possession notice has to be delivered by both the methods that is by delivery and by affixure. Until both the methods of delivery are not complied with the sale notice cannot be issued. The sale notice has to be issued within 7 days of the date of delivery of the possession notice. The Honourable Supreme Court in Mathew Varghese (supra) in para 43 has observed as under:-

“43. The above principles laid down by this Court also make it clear that though the recovery of public dues should be made expeditiously, it should be in accordance with the procedure prescribed by law and that it should not frustrate a constitutional right, as well as the human right of a person to hold a property and that in the event of a fundamental procedural error occurred in a sale, the same can be set aside.””

4. Mr.A.L.Somayaji, learned senior counsel appearing for the respondent -Bank submitted that the petitioner has not challenged the Possession Notices in S.A.No.88 of 2009 and therefore, the Debts Recovery Tribunal as well as the Debt Recovery Appellate Tribunal has rightly declined to interfere with the Possession Notices.

5. Mr.Ravi, the learned counsel appearing for the 4th respondent -auction purchaser in W.P.No.31251 of 2018 also submitted that in the absence of challenge made by the petitioner with regard to the Possession Notices, the Possession Notices cannot be set aside.

6. It is pertinent to note that the Possession Notices were issued on 04.03.2009 and 09.03.2009. The paper publications in respect of the Possession Notices were issued on 10.03.2009, 13.03.2009 and 18.03.2009. The Sale Notices were issued on 12.05.2009 in respect of the Bangalore properties and on 29.05.2009 in respect of the SIPCOT property at Sriperumbudur, Tamil Nadu. The Securitisation Appeal in S.A.No.88 of 2009 was filed by the petitioner on 18.06.2009.

7. On a perusal of Section 17 of the SARFAESI Act, it is clear that there is no provision made under the said Section for condoning the delay in filing the SARFAESI Application. The SARFAESI Application must be filed within 45 days.

8. There being a specific time-limit of 45 days for invoking the original jurisdiction of Section 17 of the SARFAESI Act, which has been found to be, in essence, a suit and a further tentative time-limit of 60 days for disposal of the proceedings, and giving a right to the party to complain before the Appellate Forum for compliance of such provisions alleging violation thereof if not completed within four months, it was never the intention of the legislature to apply Section 5 of the Limitation Act to such original proceedings by giving power to entertain the application under Section 17(1) of the SARFAESI Act by merely showing sufficient cause for the delay without putting any restriction upon the Tribunal and we, therefore, hold that the time period of 45 days provided in Section 17 of the SARFAESI Act which is original in nature cannot be extended by taking aid of Section 5 of the Limitation Act.

9. The SARFAESI Application filed under Section 17(1) of the Act is like that of a suit and that the Limitation Act applies as far as may be applicable by virtue of Sections 17(7) and 24 of the two Special Laws, therefore, Section 5 of the Limitation Act has no application in the original proceedings like a suit before Debts Recovery Tribunal. Going by the amended Section, the proceedings under Section 17 of the Act is not an appellate proceeding, but rather an original proceeding, which is brought before a Forum prescribed under the Act and is like a suit under the Code of Civil Procedure, 1908. Thus, as a matter of fact the proceedings under Section 17 of the Act are in lieu of the Civil Suit, which remedy is ordinarily available, but for the bar under Section 34 of the SARFAESI Act and an application under Section 19(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 are similar provisions in its non-applicability of Section 5 of the Limitation Act. The Debts Recovery Tribunal exercises original jurisdiction while entertaining an application filed under Section 17(1) of the SARFAESI Act.

10. In an un-reported judgment dated 03.05.2019 made in Civil Appeal No.4582 of 2019 [Ganesan rep by its Power Agent G.Rukmani Ganesan Vs. The Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board & Ors.] wherein the Hon’ble Supreme Court held as follows:

“...

39. The most elaborate judgment holding that the Limitation Act applies only to courts and not to the Tribunals is the judgment of this Court in M.P.Steel Corporation Vs. Commissioner of Central Excise, 2015(7) SCC 58, Rohinton Fali Nariman, J. speaking for the Court reviewed all earlier judgments of two-Judge and three-Judge Benches of this Court. In paragraphs 11 to 35 all earlier judgments have been considered. In the above case Commissioner of Customs (Appeals) dismissed the appeal filed by the appellant on the ground that appeal is barred by time and the Commissioner (Appeals) had no power to condone delay beyond the period specified in Section 128 of the Customs Act. In the above case, benefit of Section 14 of the Limitation Act was sought. It was contended before this Court that while Section 2 of the Limitation Act, Section 14 of the Limitation Act was also applied to criminal, special or local law. This Court noticed the ingredients of applicability of Section 14. Two-Judge Bench has held that relying on earlier judgments of this Court that provisions of the Limitation Act are applicable only to suits, appeals and applications filed in Courts. Section 29(2) was also considered by this Court and following was laid down in paragraph 33:

“33 ... Section 29(2) states:

“29. Savings - (1) * * *

(2) where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.”

A bare reading of this Section would show that the special or local law described therein should prescribe for any suit, appeal or application a period of Limitation different from the period prescribed by the Schedule. This would necessarily mean that such special or local law would have to lay down that the suit, appeal or application to be instituted under it should be a suit, appeal or application of the nature described in the Schedule. We have already held that such suits, appeals or applications as are referred to in the Schedule are only to courts and not to quasi-judicial bodies or tribunals. It is clear, therefore, that only when a suit, appeal or application of the description in the Schedule is to be filed in a Court under a special or local law that the provision gets attracted. This is made even clearer by a reading of Section 29(3). Section 29 (3) states:

“29. Savings - (1) (2) * * *

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.

When it comes to the law of marriage and divorce, the section speaks not only of suits but other proceedings as well. Such proceedings may be proceedings which are neither appeals nor applications thus making it clear that the laws relating to marriage and divorce, unlike the law of limitation, may contain proceedings other than suits, appeals or applications filed in Courts. This again is an important pointer to the fact that the entirety of the Limitation Act including Section 29(2) would apply only to the three kinds of proceedings mentioned all of which are to be filed in Courts.””

11. The ratio laid down by the Hon’ble Supreme Court in the above referred judgment applies to the present case.

12. When the application filed under Section 17(1) of the SARFAESI Act before the Debts Recovery Tribunal is an original proceeding, Section 5 of the Limitation Act is not applicable for condoning the delay in filing the application under Section 17.

13. When the Possession Notices were issued on 04.03.2009 and 09.03.2009, the petitioner should have challenged the Possession Notices within 45 days from the date of issuance of the Notices. In the case on hand, the Securitisation Appeal was filed only on 18.06.2009 challenging the Sale Notices dated 12.05.2009 and 29.05.2009. Therefore, it is clear that the intention of the petitioner in filing the Securitisation Appeal was only to challenge the Sale Notices dated 12.05.2009 and 29.05.2009 and not the Possession Notices issued on 04.03.2009 and 09.03.2009. The consequential prayer to declare that the action taken by the Bank under the SARFAESI Act as null and void cannot refer to the action already taken by the respondent -Bank by issuing Section 13 (2) and 13 (4) notices and it can only be after the issuance of Sale Notices dated 12.05.2009 and 29.05.2009. The consequential relief can only be subsequent to the main relief and it cannot refer to the action taken prior to the main relief. When the main relief was to set aside the Sale Notices dated 12.05.2009 and 29.05.2009, the consequential relief cannot be granted with regard to the action taken prior to the said Sale Notices.

14. That apart, as already stated, the petitioner cannot challenge the Possession Notices dated 04.03.2009 and 09.03.2009 after the period of limitation prescribed under Section 17 of the SARFAESI Act. The Tribunals below have rightly set aside the Sale Notices and declined to interfere with the Possession Notices. Though there is no dispute with regard to the ratio laid down by the Division Bench in the judgment relied upon by the learned senior counsel for the petitioner, for the reasons stated above, the said ratio is not applicable to the present case.

15. Therefore, from the above it is clear that the petitioner did not seek to set aside the Possession Notices dated 04.03.2009 and 09.03.2009. Further, it is clear that even if a challenge was made to the said Possession Notices in the Securitisation Appeal in S.A.No.88 of 2009 on 18.06.2009, the same is barred by limitation.

16. In such view of the matter, we do not find any error or irregularity in the orders passed by the Tribunals below. The Writ Petition is liable to be dismissed.

17. It is also pertinent to note that the SIPCOT property at Sriperumbudur, Tamil Nadu was sold to the 4th respondent on 17.02.2010 in pursuance to the Sale Notice dated 05.01.2010 and the sale was confirmed on 08.04.2010 and possession was handed over to the 4th respondent on 18.06.2010. In respect of the two Bangalore properties, pursuant to the Sale Notice dated 25.02.2010, the 5th respondent purchased both the properties in the auction held on 06.04.2010 and the sale was confirmed on 27.04.2010. On 28.05.2011, the respondent -Bank issued a Sale Notice in respect of the hypothecated machineries and the 6th respondent purchased Lot - 1 of the hypothecated machineries in the auction held on 05.07.2011. The petitioner themselves purchased Lots -2 & 3 in the auction held on 05.07.2011.

18. The petitioner filed three applications to condone the delay of 545 days in I.A.No.530 of 2011 to set aside the auction held on 17.02.2010 pursuant to the sale notice dated 05.01.2010, 172 days in I.A.No.160 of 2012 to set aside the auction held on 05.07.2011 pursuant to the sale notice dated 28.05.2011 and 627 days in I.A.No.161 of 2012 to set aside the auction held on 06.04.2010 pursuant to the sale notice dated 25.02.2010.

19. Challenging the orders passed in I.A.Nos.530 of 2011, 160 of 2012 and 161 of 2012 in S.A.(SR).Nos.3957 of 2011, 740 of 2012 and 742 of 2012 respectively on the file of the Debts Recovery Tribunal -III, Chennai, the petitioner, who is the borrower, has filed the above Civil Revision Petitions.

20. All the three applications were filed on the same set of facts and prope

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rties involved in three different cases. Further, all the three applications were filed under Section 5 of the Limitation Act to condone the delay in filing the Securitisation Appeals under Section 17 of the SARFAESI Act. As already stated, the Debts Recovery Tribunal has no jurisdiction to condone the delay in filing a Securitisation Appeal under Section 5 of the Limitation Act. 21. The Debts Recovery Tribunal -III, Chennai has rightly dismissed all the three applications. Further, the petitioner has filed the above Civil Revision Petitions challenging the orders passed by the Debts Recovery Tribunal, without exhausting the appeal remedy under Section 18 of the SARFAESI Act. 22. The Supreme Court in The Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C., reported in (2018) 3 SCC 85 and Agarwal Tracom Private Limited Vs. Punjab National Bank and others, reported in (2018) 1 SCC 626 held that the aggrieved parties cannot challenge the SARFAESI proceedings directly by filing the Civil Revision Petitions under Article 227 of the Constitution of India without exhausting the appeal remedy available to them. 23. In a recent decision of the Supreme Court in ICICI Bank Limited v. Umakanta Mohapatra, reported in 2018 SCC Online SC 2349, the Supreme Court has referred to the decision in Mathew K.C. case, referred supra, and has observed that despite several judgments, including the decision of Mathew K.C., cited supra, the High Courts continue to entertain matters which arise under the SARFAESI Act and keep granting interim orders in favour of persons who are Non-Performing Assets. Further, the Supreme Court held that Writ Petition filed by the aggrieved party without exhausting the statutory remedy available under the SARFAESI Act and Recovery of Debts Due to Banks and Financial Institutions Act, is not maintainable. 24. For the reasons stated above, we are not inclined to interfere with the orders passed by the Debts Recovery Tribunal. The Civil Revision Petitions are devoid of merits and the same are liable to be dismissed. 25. In the result, the Writ Petition and the Civil Revision Petitions are dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
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