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2017 Supreme(Mad) 4062
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Canara Bank Represented by its Manager, Ghetticheviyur Branch - Petitioner
Vs.
G.K. Subramaniam Proprietor M/s.Gomathi Oil Mills & Anr. - Respondents
CRP (NPD) No. 2415 of 2012 & M.P. No. 1 of 2012
Decided On : 12-07-2017
Advocate Appeared:
For the Petitioner: Mr. T.C.A. Srinivasan
For the Respondents: Mr. N. Ishtiaq Ahmed, Mr. R.T. Doraisamy
Headnote:
Civil Procedure Code, 1908 - Section 151 - Order 21 - Rule 66 and 90 - Recovery of Debts Due to Banks and Financial Institutions Act - Section 5(2)(b) - SARFAESI Act - Material irregularity and fraud committed in conducting sale - Recovery of amount - Decreed - Petitioner is Canara Bank, Branch representing by its Branch Manager - It is case of petitioner that Bank has filed Civil Suit against respondents/defendants for recovery of amount with cost and interest at rate of 16.25% per annum and preliminary decree was passed and final decree was passed - But, respondents/defendants have not filed any appeal against the judgment and decree passed - After decree, petitioner has filed Execution Petition in E.P.No. before learned Additional District Judge (Fast Track Court-II) for executing decree and later property belongs to judgment debtor was attached along to respondents/defendants and the same was public auctioned - Thereafter, petitioner/bank has filed a petition in E.A.No.for setting aside auction sale - Petitioner/bank has alleged that bank has filed Execution Petition for sale to execute decree passed in O.S.No. against 1st respondent. Pursuant to that, Court viz., Additional District Judge, Fast Track Court-II - Held, Tribunal may, on receipt of such records, proceed to deal with such suit of other proceeding, so far as may be, in same manner as in case of an application made under Section 19 from stage which was" reached before such transfer or from any earlier stage or de novo as Tribunal may deem fit - As per judgment produced by the learned counsel for petitioner that a fair reading of Section 5(2)(b) of Recovery of Debts Due to Banks and Financial Institutions Act Execution Application being a proceeding pending in a Civil Court when Act came into force was liable to be transferred to Tribunal because amount for which execution application had been filed as per decree which was passed over amount - Case of petitioner/plaintiff, he would very well inform learned Executing Court by producing SARFAESI Act and praying for transfer of Execution Petition to Debt Recovery Tribunal, but, all along petitioner/plaintiff has keep quite and not made any whisper about the SARFAESI Act, but accepting the public auction sale conducted by Executing Court - Apart from this, in petition filed in E.A.No. petitioner not at all mentioning anything about the SARFAESI Act and his request also not in detail for transfer of case to Debt Recovery Tribunal - In result, this Civil Revision Petition is dismissed
The decree holder in E.P.No.4 of 2007 is the Civil Revision Petitioner before this Court, challenging the order passed in E.A.No.30 of 2008 in E.P.No.4 of 2007 in O.S.No.7 of 2002, dated 02.08.2011, on the file of the learned Additional District Court (Fast Track Court No.II), Gobichettipalayami.
2. The petitioner is the Canara Bank, Ghetticheviyur Branch representing by its Branch Manager. It is the case of the petitioner that the Bank has filed the Civil Suit against the respondents/defendants for recovery of amount of Rs.6,22,074/- with cost and interest at the rate of 16.25% per annum and the preliminary decree was passed on 24.07.2002 and final decree was passed on 30.07.2004. But, the respondents/defendants have not filed any appeal against the judgment and decree passed in O.S.No.7 of 2002. After the decree, the petitioner has filed the Execution Petition in E.P.No.4 of 2007 before the learned Additional District Judge (Fast Track Court-II), Gobichettipalayam for executing the decree and later the property belongs to the judgment debtor was attached along to the respondents/defendants and the same was public auctioned. Thereafter, the petitioner/bank has filed a petition in E.A.No.30 of 2008 for setting aside the auction sale held on 13.11.2008, filed under Order 21 Rule 90 and Section 151 of C.P.C.
3. In the petition, the petitioner/bank has alleged that the bank has filed the Execution Petition for sale to execute the decree passed in O.S.No.7 of 2002, against the 1st respondent. Pursuant to that, the Court viz., the Additional District Judge, Fast Track Court-II, also brought the property for public auction sale and accordingly, the 2nd respondent is the highest bidder and taken the property in Item Nos.1 and 2 of the petition mentioned property at Rs.2,13,500/- and Rs.50,400/- respectively.
4. Therefore, the petitioner has filed an application by stating that there is a material irregularity and fraud committed in conducting the sale. The petitioner/bank also states that item No.1 of the property mentioned in the execution petition was mortgage property and item No.2 of the property mentioned in the execution petition was property was attached by the Court as per the judgment in I.A.No.652 of 2001 in O.S.No.346 of 2000, on the file of the Principal Sub-Court, Gobichettipalayam, when the suit is pending before the Court.
5. The petitioner also states that in Plot Nos.1 and 2 in Item No.2 properties mentioned in the execution petition were mentioned as item No.1 and 2 in the attachment petition in I.A.No.652 of 2001. The petitioner who is the decree holder has valued the said property at Rs.1,00,000/- and Rs.50,000/- respectively in the said attachment petition. The Court Amin, who attached that property on 27.08.2001 was valued the properties as Rs.2,00,000/- and Rs.1,00,000/- respectively. The petitioner also states that in the counter affidavit filed by the 1st respondent/Judgment debtor in EPR.No.4 of 2007 on 09.09.2008 stated that the value of the Item No.1 of the properties mentioned in the execution petition (mortgaged properties) as Rs.5,00,000/- and item No.2 of the properties mentioned in the execution petition (item No.1 and 2 in the attachment petition) as Rs.3,00,000/-. But, the Executing Court fixed the upset price for item No.1 of the properties mentioned in the execution petition as Rs.1,25,000/- and item No.2 of the property mentioned in the execution petition which contain two plots as Rs.50,000/- which is very very low on the following grounds for Item No.2:-
“(a) Plot (1) in item No.2 land measuring 0.39.5 Hec. (0.97 = acre) in New S.F.No.317/2 Shanthipalayam village was valued by the petitioner/decree holder as Rs.1,00,000/- as on 20.07.2001.
(b) Plot (1) in item No.2 was valued by the amin on 27.08.2001 as Rs.2,00,000/-.
(c) Plot 2 in item No.2 house property was valued by the petitioner/decree holder as Rs.50,000/- as on 20.07.2001.
(d) Plot 2 in item No.2 house property was valued by the amin on
