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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V. PARTHIBAN, J.
State Bank of India, Represented by its Chief Manager, Madurai – Appellant
Versus
The Joint–II Sub-Registrar, Karur & Others – Respondent
W.P (MD) No. 17254 of 2020 & W.M.P (MD) No. 14443 of 2020
Decided On : 24-03-2021
SARFEASI Act – Section 13 – Constitution of India, 1950 – Article 226 – Writ of mandamus – Encumbrance Attachment – Writ Petition filed under Article 226 of the Constitution of India, to issue a writ of mandamus directing the 1st respondent Joint II Sub-Registrar, Karur to efface/ delete the encumbrance attachment entry in Doc. encumbrance attachment entry in Doc., encumbrance attachment entry in Doc., encumbrance attachment entry in Doc., encumbrance attachment entry in Doc., encumbrance attachment entry in Doc., encumbrance attachment entry in Doc. and encumbrance attachment entry in Doc. all on the 1st respondent, Joint - II Sub-Registrar, Karur as against the schedule mentioned property
Finding of court: When the legal principle has been well settled in favour of the petitioner claim, the presence and absence of the private respondents would not be material at all in disposing of this writ petition. – Court is of the view that as contended by the learned Counsel for the petitioner, the claim of the petitioner has to be necessarily allowed. – The facts would disclose that the charge has been created by the bank as early as on 04.07.2011 itself, that is much prior to the attachments made on the schedule property at the instance of the respondents 2 to 4 herein. – In view of the catena of decisions and a few of which, referred to for the sake of brevity, this Court being bound by the decisions has to mandatorily follow the legal precedents on the subject matter. – Moreover, there appears to be no dispute in regard to the factual narrative as mentioned above and therefore, this Court has to allow this writ petition without any hesitation. – Writ of Mandamus is issued to the 1st respondent to delete the encumbrances, namely the attachment entries as stated by the petitioner in the prayer of the writ petition, in respect of the schedule property, made at the instance of the respondents 2 to 4 herein. – The 1st respondent is directed to implement this direction within a period of four weeks from the date of receipt of a copy of this order. – The bank is also directed to make available a copy of the affidavit filed in support of the writ petition for the 1st respondent to act in pursuance of the above direction of this Court.
Result: Writ Petition Allowed
JUDGMENT :
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, to issue a writ of mandamus directing the 1st respondent Joint II Sub-Registrar, Karur to efface/ delete the encumbrance attachment entry dated 24.02.2014 in Doc.No.7/2014, encumbrance attachment entry dated 29.04.2014 in Doc.No.9/2014, encumbrance attachment entry dated 04.06.2015 in Doc.No.22/2015, encumbrance attachment entry dated 09.05.2017 in Doc.No.15/2017, encumbrance attachment entry dated 09.05.2017 in Doc.No.16/2017, encumbrance attachment entry dated 09.05.2017 in Doc.No.17/2017, encumbrance attachment entry dated 24.08.2017 in Doc.No.28/2017 and encumbrance attachment entry dated 04.11.2019 in Doc.No.23/2019 all on the 1st respondent, Joint - II Sub-Registrar, Karur as against the schedule mentioned property.)
1. The petitioner is a nationalised bank having its branch at Madurai represented by its Chief Manager. The case of the petitioner is that one Dhanarajan and his wife being partners of M/s.SMT Transport availed cash credit loan facility of Rs.35,00,000/- from the petitioner's bank. While obtaining loan and sanction of the same by the bank, the said Dhanasekaran and his wife as partners of the above said firm, mortgaged the schedule property vide registered memorandum of deposit of title deeds dated 04.07.2011 registered as document No.1421/2011 in the office of the Joint II Sub-Registrar, Karur by creating a valid security interest in favour of the bank towards securing the credit facilities availed by the firm. On 19.03.2012 the cash credit facility was enchanced to Rs.50,00,000/- at the request of the borrower.
2. The borrower did not discharge their obligation under the terms of the credit facilities availed by them and committed serious defaults in repayment of the advances and eventually the loan account was classified as Non Performing Assets (NPA) with effect from 30.01.2013. Thereafter, the petitioner has filed O.A.No.53 of 2016 before the Debts Recovery Tribunal (DRT), Madurai for recovery of the loan outstanding and the OA was transferred on the file of the Debts Recovery Tribunal, Coimbatore in T.A.No.1384 of 2019. The petitioner in the meanwhile, issued statutory notice under Section 13(2) of the SARFEASI Act on 04.02.2013 demanding repayment of the outstanding loan amount of Rs.74,09,367.35 followed by a statutory possession notice under Section 13(4) of the SARFEASI Act on 10.04.2013.
3. According to the petitioner bank, despite the demand notices being issued to and received by the borrowers, there was no response to the notices and therefore, the bank proceeded to issue sale notice under Section 13(4) of the SARFEASI Act, on 22.02.2014 seeking to bring the secured assets for auction sale. At this, the borrowers field S.A.No.134 of 2014 before the DRT, Madurai and there was an order of interim stay by the DRT, Madurai on condition that the borrowers shall deposit a sum of Rs.20,00,000/-, apart from other usual conditions vide order dated 26.03.2014. In pursuance of which, the borrowers failed to comply with any other conditions. In the said circumstances, the said S.A.No.134 of 2014 was disposed by the DRT, Madurai on 19.08.2014.
4. According to the petitioner bank that the auction sale originally did not materialise to the satisfaction of the bank and subsequent sale notice did not fructify into sale. But finally auction sale notice was issued on 17.09.2020 scheduling for the public auction sale on 05.10.2020 for recovery of the present outstanding loan amount of Rs.1,42,69,635/- as on 31.08.2020. A sale notice was also widely published in two newspapers namely, 'the Hindu' and 'the Daily Thanthi'. In the auction one P.Muthulingam purchased the property for a valuable sale consideration of Rs.69,25,000/- on 05.10.2020 and the sale was also confirmed by the bank on 20.10.2020.
5. In the meanwhile, it appeared that various attachment charges had been registered from the year 2014, 2015, 2017 and 2019 upon the prop
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