P. Murugan VS Registrar, Debts Recovery Appellate Tribunal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

MADRAS HIGH COURT
S. Manikumar and M. Govindraj, JJ.
P. Murugan —Petitioner
versus
Registrar, Debts Recovery Appellate
Tribunal & Ors. —Respondents
W.P.No.28528 of 2014 and W.M.P.No.1 of 2014
Decided On 3.1.2017

Advocates:
Counsel for the Parties:
For the Petitioner:Mr. A.V. Arun, Advocate
For the Respondents:Mr. Jayesh B. Dolia, Advocate

Headnote:(a) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Sections 17 and 18 r/w Rule 13(1)(e) and 13(2)(1), Security Interest (Enforcement) Rules, 2002 – U/s 17, there could be a main application and incidental or connected application/s, for any interim prayer arising out of action taken u/s 13(4) by secured creditors – Payable court fee – Any person not confined to borrow or guarantor only – It could be any persons aggrieved or affected by an action u/s 13(4) – Fee payable in respect of such interim application – Depends upon the debt due – Fee in respect of any any other cause of action, payable at a fixed rate of Rs.200. (Para 22, 23, 35)
       (2010) 8 SCC 110 – Relied upon
       W.P.No.9604 of 2009 – Discented from
       (b) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 13 and 17 and Rule 13 – Rule 13 r/w section 13(4), (10) and (12) has to be interpreted in tune with Section 17(1) of the Act. (Para 36)
       Security Interest (Enforcement) Rules, 2002 – Rule 13(2)(1)(e) – Refers to “any application” and not “any person”. (Para 37)
       2016 (2) CTC 593 : 2016 (2) LW 81 : 2016 (2) MLJ 274 : AIR 2016 MAD 98 : 2016 (2) MWN (Civil) 113 – Referred
       (c) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 13(2)(1) – Writ optitioner neither borrower nor guarantor – But any person – Liable to pay fee as prscribed in Rule 13(2)(1) depending on the amount of debt due. (Para 43)
       (2012) 13 SCC 269; (2014) 1 SCC 479; (2012) 13 SCC 269 – Relied upon
       (d) Interpretation of statutes – Section 13(4) – “Any person” – Cannot be interpreted as “any other person”. (Para 49)
       1994 Supp (1) SCC 280; (2001) 7 SCC 71; AIR 2003 Kant. 187; (2008) 4 SCC 755; (2009) 13 SCC 22 – Relied upon
       (e) Administration of justice – Judicial propriety – Precedent – Differing opinion of co-ordinate Bench – Present Divisoon Bench difdfering with earlier Division Bench – Following Supreme Court ruling delivered in the interregnum – Subsequent Supreme Court decision becomes binding on all courts – No ned to refer the matter tomlarger Bench. (Para 50)
       (f) Interpretation of statute – Precedent – Judgment rendered at a later point of time and proximate to the case in hand and which has considered the decisions of the Hon’ble Apex Court – Will prevail over the former. (Para 51)
        2001(4) KAR.L.J. 185; AIR 1962 Madras 45; AIR 1977 Allahabad 1; AIR 1980 Bom. 341 – Relied upon
       (g) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 18 – Petitioner filing an appeal u/s 18 – Fees therefor prescribed in Rule 13(2)(1) (a) to (d) – In the facts present case falling u/r Rule 13(2)(1)(c) and (d) – Required fee has to be paid. (Para 52, 53, 54)
       Result: Petition dismissed.

ORDER

S. Manikumar, J.—Challenge in this writ petition, is to an order made in RA(SA) No.49 of 2013, dated 10.09.2014, on the file of the Debts Recovery Appellate Tribunal, the first respondent herein, by which, the Appellate Tribunal has ordered the writ petitioner to pay the deficit court fee, and granted time, upto 03.12.2014.

2. According to the writ petitioner, he is the owner of the property comprised in Plot. No. 69, Harita Enclave, Survey No. 384 of 1A1 and 1A2 situated in Tambaram Village and Taluk, Kanchipuram District, admeasuring about 3160 sq.ft., having purchased the same from Mr. C.N. Embar and Mr. A.S. Ramanujam, both represented by power of Attorney Mr. V. Balasubramanian (Doc.Nos.950 & 951 of 1991 both dated 25.10.1991) and M/s. Blue Jaggers Estates Ltd, rep, by its Managing Director V. Sampath, as their selling agent, by way of a registered sale deed, dated 22.01.1999, registered as Document No.249 of 1999, on the file of SRO, Tambaram.

3. It is also the contention of the petitioner that ever since the date of purchase, he has been in absolute possession and enjoyment of the land in question. Mutation of revenue records has been done and patta has been issued by the revenue authorities, in original patta No.2930. Since 1991, he was employed in Africa and living there, he used to come to India once in two years. When he came to India, he visited the property on 20.5.2009 and shocked to know that the abovesaid property was auctioned by Indian Bank, Asset Recovery Management Branch, Chennai, the third respondent herein, for certain alleged dues of M/s.Blue Jaggers Estates Ltd.

4. The petitioner has further submitted that the third respondent-Bank, for certain alleged dues of M/s.Blue Jaggers Estates Ltd., had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Act”) and proposed to auction the entire layout in Harita Enclave in Tambaram.

5. Aggrieved by the auction conducted by the Bank, the petitioner has filed S.A. No. 95 of 2009, before Debt Recovery Tribunal-III (In short “DRT”), Chennai, on various grounds. The third respondent Bank has entered appearance and filed counter. Despite notice, Mr. S.R. Raja, 4th respondent herein, auction purchaser remained ex-parte. The said application was taken up along with another application in S.A. No. 152 of 2008, filed by one Mrs. Vasantha Srinivasan, owner of Plot No. 49, and another. According to the petitioner, though the facts leading to both the applications were identical, S.A. No. 95 of 2009 filed by the Petitioner was dismissed on 14.03.2013. Whereas, S.A. No. 152 of 2008, filed by the said Vasantha Srinivasan, was allowed, by separate orders, dated 14.03.2013. Aggrieved by the dismissal of S.A. No. 95 of 2009, dated 14.03.2013, the petitioner filed R.A(S.A) 49 of 2013, before the Debt Recovery Appellate Tribunal (In short DRAT).

6. The petitioner has further submitted that he is neither a borrower nor a guarantor and he is a third party to the proceedings, initiated under the SARFEASI Act, but aggrieved by order of the Tribunal. Further, the subject property was never mortgaged by him, nor the alleged mortgagor, viz., Mr. V. Sampath or M/s. Blue Jagger Estates Limited, had any power to mortgage the property. According to him, the vendors of the petitioner viz. Mr. C.N. Embar and Mr. A.S. Ramanujam, have given the power of attorney, dated 25.10.1991, to Mr. V. Balasubramanian and M/s. Blue Jagger Estates Limited and they had only a limited role to play, as a selling agent and agent for getting approval from CMDA.

7. The petitioner has further submitted that he is not claiming through or under the alleged mortgagor and that the property purchased by him was, at no point of time, mortgaged by him with the Bank. It is also his submission

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MADRAS HIGH COURTS. Manikumar and M. Govindraj, JJ. P. Murugan —Petitioner versus Registrar, Debts Recovery Appellate Tribunal & Ors. —Respondents W.P.No.28528 of 2014 and W.M.P.No.1 of 2014 Decided On 3.1.2017

Cases Referred (62)

MADRAS HIGH COURT
S. Manikumar and M. Govindraj, JJ.
P. Murugan —Petitioner
versus
Registrar, Debts Recovery Appellate
Tribunal & Ors. —Respondents
W.P.No.28528 of 2014 and W.M.P.No.1 of 2014
Decided On 3.1.2017