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2017 Supreme(Mad) 3369
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, R. SURESH KUMAR, JJ.
Dr. E.D. Charles - Petitioner
Versus
The Chief Manager, Authorized Officer & Others - Respondents
W.P. No. 29304 of 2017 & WMP. Nos. 31553 & 31554 of 2017
Decided On : 16-11-2017
For the Petitioner:N.L. Rajah, Sr. Counsel, Advocate.
The main legal point established in the judgment is that when an effective and alternative remedy is available, a writ petition is not maintainable, and the petitioner should exhaust the remedies available under the relevant statute before approaching the High Court.
Headnote:
SARFAESI Act - Property Possession Notice - Section 13(4) - [Tamil Evangelical Lutheran Church] - [SARFAESI Act, 2002, Section 13(4)] - The court discussed the possession notice issued under Section 13(4) of the SARFAESI Act, 2002, and the fraudulent actions of the respondents in creating forged documents to sell the property belonging to the church. The court also considered the alternative remedy provided under the SARFAESI Act and the legal principles established in previous judgments.
Fact of the Case:
The petitioner, claiming to be the Former Secretary and Member of Tamil Evangelical Lutheran Church, sought a writ of certified mandamus to quash the possession notice issued under Section 13(4) of the SARFAESI Act, 2002, by Syndicate Bank, Chennai. The petitioner contended that the property under possession notice was owned by the church and that the respondents had committed criminal conspiracy and forged several deeds to sell the property.
Finding of the Court:
The court found that the possession notice was issued by the bank under the SARFAESI Act due to the default in loan repayment by the borrowers. The court also noted the fraudulent actions of the respondents in creating forged documents to sell the property. The court dismissed the writ petition, citing the availability of an effective alternative remedy under the SARFAESI Act.
Issues: The issues involved the ownership of the property, fraudulent actions of the respondents in selling the property, and the validity of the possession notice issued under the SARFAESI Act.
Ratio Decidendi: The court held that when there is an effective and alternative remedy available, a writ petition is not maintainable. The court cited previous judgments to support the principle that the High Court will not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person.
Final Decision: The court dismissed the writ petition, stating that the petitioner should have approached the appropriate Tribunal as an effective alternative remedy was available under the SARFAESI Act.
S. Manikumar, J.
1. Claiming himself to be the Former Secretary and Member of Tamil Evangelical Lutheran Church, petitioner has sought for a writ of certified mandamus, to quash the possession notice dated 07.10.2017 issued under Section 13(4) of the SARFAESI Act, 2002, by Syndicate Bank, Chennai. Consequently, the petitioner has sought for a direction to Chief Manager/Authorized Officer, Syndicate Bank, Chennai, forbearing from initiating any proceedings under the SARFAESI Act, 2002 or any other Banking Laws against the Tamil Evangelical Lutheran Church, represented by its Administrator, Thiruchirapalli.
2. According to the petitioner, Tamil Evangelical Lutheran Church, was founded on 09.07.1706 and registered with Tamil Societies Registration Act, 1975. Church has many members and constituent bodies. Church has educational, health and other institutions. High Court, Madras, has appointed the Hon'ble Justice Mr.J.Kanagaraj (Retired Judge of High Court, Madras), as Administrator, to administer Tamil Evangelical Lutheran Church. The Hon'ble Judge has resigned and as Former Secretary of Tamil Evangelical Lutheran Church and member, instant writ petition has been filed to protect the rights and properties of the church from illegal acts and fraud committed by respondents 1 to 11.
3. The petitioner has contended that subject matter of the property under possession notice dated 07.10.2017, is owned by Tamil Evangelical Lutheran Church and that M/s. Rethna Stores is in possession and enjoyment of the said property as a tenant and paying regular monthly rent to the church.
4. While that be so, in order to grab the subject property D.Arul Raj, son of Dhivyanathan, 3rd respondent claiming himself to be the Secretary and Chief Property Officer of "Kremmer Sandegren Foundation", with an intention to sell the property, on 17.04.2015, appointed one A.Pugazhendi, son of Arumugam as power agent of the "Kremmer Sandegren Foundation" and that a power deed has been executed and registered on the file of North Sub Registrar Office No.1, as Doc.No.219 of 2015.
5. Writ petitioner has further submitted that on the basis of the document dated 17.04.2015 the said A.Pugazhendi, as power agent of "Kremmer Sandegren Foundation", has executed a sale deed in favour of M.Muthusamy, the 5th respondent, for a sale consideration of Rs.6 Lakhs, registered as Document No.2039 of 2015 on 24.04.2015 on the file of the Sub Registrar Office, Purasaivakkam.
6. Writ petitioner has further submitted that on 05.11.2015, D.Arulraj, the 3rd respondent, and the said A.Pugazendhi have executed Power Cancellation Deed, by cancelling the registration of General Power Deed Document No.219 of 2015 dated 17.04.2015 and that the cancellation deed has been duly registered as Document No.5033 of 2015 on the file of North Sub Registrar Office No.1, Chennai.
7. The petitioner has further contended that P.S.Sivaperumal, the 2nd respondent and M.Muthusamy, the 5th respondent, have executed a sale cancellation deed, by cancelling the sale deed No.2039 of 2015 and that, cancellation has been registered as Document No.5010 of 2015, on the file of the Sub Registrar Office, Purasaiwakkam.
8. In the capacity of General Power Agent of "Kremmer Sandegren Foundation", A.Pugazhendi has borrowed a sum of Rs.3,00,000/- from R.Vayanaperumal, the 6th respondent and R.Ponnumani, the 7th respondent, by executing a deed of simple mortgage in their favour and that the said document has been registered as Doc.No.2042 of 2015 on the file of Sub Registrar Office, Purasaiwakkam. Writ petitioner has contended that thus, from 2015 onwards, by colluding with each other, respondents 3 to 6 have created forged documents, one after another, in respect of the property, belonging to Tamil Evangelical Lutheran Church.
9. Writ petitioner has further contended that D.Arulraj, 3rd respondent through M.Rajkumar, 8th respondent, the alleged power agent of "Kremmer Sandegren Foundation", has sold the property on 11.12.2
