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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, V. BHAVANI SUBBAROYAN, JJ.
N.S. Suresh - Petitioner
Versus
The Authorised Officer, Vijaya Bank, ARM Branch, Chennai & Another - Respondents
Writ Petition No. 2789 of 2018 & W.M.P. No. 3438 of 2018
Decided On : 08-02-2018
Constitution of India, 1950 – Article 226 – SARFAESI Act, 2002 – Sections 13, 17, 14, 18 – Sold by e-auction – Recovery of Bank dues – It is notified for all concerned that the following property is secured in favour of Vijaya Bank, Indira Nagar, Chennai Branch and as secured creditor taken possession under SARFAESI Act, 2002 will be sold by e-auction on 17/2/2018, "as is where is and as is what is basis" for recovery of Bank dues – This is a notice to the borrower/s and to the guarantor/s of the below said loan about the holding of E-Auction sale on the said dates – If their outstanding dues are not repaid in full by the said auction date – Held, It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for re-dressal of his grievance. – It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. – In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. – Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 : 1999 (2) L.W. 200 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order. – It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. – Court hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection. – Writ Petition Dismissed
S. Manikumar, J.
1. Borrower has challenged the e-auction notice, dated 2/2/2018, which is extracted hereunder:-
Property for E-auction
It is notified for all concerned that the following property is secured in favour of Vijaya Bank, Indira Nagar, Chennai Branch and as secured creditor taken possession under SARFAESI Act, 2002 will be sold by e-auction on 17/2/2018, "as is where is and as is what is basis" for recovery of Bank dues. This is a notice to the borrower/s and to the guarantor/s of the below said loan about the holding of E-Auction sale on the said dates. If their outstanding dues are not repaid in full by the said auction date.
Name and Address of Borrower/s, Mortgagor/s and Guarantor/s:
1. Borrower/Mortgagor: Mr. N.S. Suresh, S/o. Sundaram,
2. Co-borrower: Mrs. S. Rajalakshmi, W/o. N.S. Suresh, Both residing at No.43/8 G1 Arun Flats, Raja Street, RA Puram, Mylapore, Chennai 600 028.
2. Amount due to the Bank: Rs.37,80,968.96/- (Rupees Thirty Seven lakhs Eighty thousand Nine hundred sixty eight and paisa ninety six only) as on 30/1/2018 along with further interest from 31/1/2018 together with cost, charges other monies etc.
3. Symbolic possession taken on 8/5/2015
The undermentioned properties will be sold by "Online e-Auction through website https:\vijayabank.auctiontiger.com on the date and terms mentioned herein for recovery of an amount as mentioned herein Rs.37,80,968.96/- (Rupees Thirty seven lakhs eighty thousand nine hundred sixty eight and paisa ninety six only) together with costs, charges other monies.
Schedule property
Description of the Immovable property mortgaged to the bank by - Mr. N.S. Suresh, S/o. Sundaram: All that piece and part of land and building property 443 sq.ft UDS in land measuring 3690 sq.ft bearing Door No.New No.8, Old No.6, Raja Street, Sivagamipuram (as per Corporation Records Door No.8/1 Raja Street Extrension, RA Puram), Mylapore, Chennai 600 028, comprised in R.S.No.4230/2B, Block No.90 and one unit of residential flat bearing No. A of an extent of 794 sq ft located in Ground Floor of Apartment named "Arun Flats" situated within the sub-Registration District of Mylapore and Registration District of South Chennai. Bounded on the North by Plot owned by R.Sundaram & R. Santhanam, South by Raja Street, East by 40 feet, Raja Gramini Thottam, West by Plot No.38.
Date and Time of E-auction
17/2/2018 between 11.00 am and 1.00 p.m., with unlimited extension of 10 minutes i.e., the end time of e-auction will be extended by 10 minutes each time if bid is made within the last 10 minutes before closure of action
Reserve Price
Rs.48,00,000 (Rupees forty eight lakhs only)
Earnest Money deposit
Rs.4,80,000/- (Rupees four laksh eighty thousand only)
Incremental amount
Multiples of Rs.25,000/- only
Date of Inspection by intending purchasers
12/2/2018 between 11.00 am and 4 p.m
Last date for submission of tender form
16/2/2018 till 2.00 pm
The sealed cover should be superscribed with
Quotation for participating in e-auction sale - "N.S.Suresh, S/o. Sundaram"
Date, time & place of opening of online offers
16/2/2018 at 2.00 p.m at Vijaya Bank, ARM Branch, 144 Moore Street, Chennai 600 001.
2. Contentions have been raised that the Bank has issued a notice, dated 3/3/2015, under Section 13 (2) of the SARFAESI Act, 2002, demanding a sum of Rs.28,01,670.94, together with interest. Bank has also obtained an order, in Crl.M.P.No.6540 of 2015, dated 25/11/2015, under Section 14 of the SARFAESI Act, 2002, from the learned Chief Metropolitan Magistrate, Chennai, for taking possession of the mortgaged property and Bank has also taken physical possession of the said property, on 20/1/2018, as per the orders of the learned Chief Metropolitan Magistrate.
3. Bank has issued a e-auction notice, on 24
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