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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.DURAISWAMY, T.RAVINDRAN, JJ.
Yogesh - Petitioner
Vs.
The Chief Judicial Magistrate, Madurai - Respondents
W.P(MD)No.3491 of 2020 and W.M.P.(MD)Nos.2953, 2955 and 2956 of 2020
Decided On : 21-02-2020
For the Petitioner: Mr.G.Prabhu Rajadurai
For the Respondents: Mr.T.S.Mohammed Mohideen, Mr.Pala Ramasamy
Exhaustion of alternate remedies under the SARFAESI Act before filing a writ petition under Article 226 of the Constitution of India is crucial.
Headnote:
SARFAESI Act - Tenant's Rights - Section 14, Section 17(4-A) - Summary of Acts and Sections: The court discussed the provisions of Section 14 and Section 17(4-A) of the SARFAESI Act, highlighting the tenant's right to challenge orders before the Debts Recovery Tribunal. The court emphasized the importance of exhausting alternate remedies before filing a writ petition under Article 226 of the Constitution of India.
Fact of the Case:
The petitioner, a tenant, filed a writ petition challenging an order under Section 14 of the SARFAESI Act, seeking restoration of possession of the tenanted premises. The petitioner claimed lack of notice and maintained the writ petition was maintainable despite the availability of an appeal remedy under Section 17(4-A) of the SARFAESI Act.
Finding of the Court:
The court dismissed the writ petition, citing the petitioner's failure to exhaust the alternate remedy available under the SARFAESI Act. The court also directed the respondents to de-seal and unlock the premises for a week to allow the petitioner to remove belongings.
Issues: The issues revolved around the petitioner's claim of lack of notice, maintainability of the writ petition, and the availability of alternate remedies under the SARFAESI Act.
Ratio Decidendi: The court emphasized the importance of exhausting alternate remedies before filing a writ petition under Article 226 of the Constitution of India, particularly in cases involving the SARFAESI Act.
Final Decision: The writ petition was dismissed, and the respondents were directed to de-seal and unlock the premises for a week to allow the petitioner to remove belongings.
ORDER :
[Order of the Court was made by M.DURAISWAMY,J.]
The petitioner has filed the above writ petition to issue a Writ of Certiorarified Mandamus to call for the records in respect of the order in Cr.M.P.No. 1524 of 2019, dated 08.01.2020 on the file of the first respondent and quash the same and further directing the respondents 2 and 3 to restore the possession of the tenanted premises, viz., basement, ground floor and first floor of the building bearing Door No.101 (now No.101 A) situated in T.S.No.134, North Perumal Maesthri Street, Madurai-625 001 to the petitioner.
2. It is the case of the petitioner that he is a tenant in respect of the secured asset under the third respondent. The third respondent availed loan from the second respondent Bank and committed default in repaying the loan amount, which necessitated the second respondent to initiate a proceeding under the SARFAESI Act. Subsequently, the second respondent filed a petition in Cr.M.P.No. 1524 of 2019 under Section 14 of the SARFAESI Act for taking physical possession of the property before the first respondent.
3. The first respondent, by order dated 08.01.2020, allowed the petition and also appointed a Commissioner to take physical possession of the secured asset. Challenging this order, the petitioner, who is a tenant, has filed the above Writ Petition.
4. It is the case of the petitioner that he was not issued with any notice by the first respondent in Cr.M.P.No.1524 of 2019 and therefore, the order passed by the first respondent is liable to be set aside. It is also pertinent to note that the petitioner had also filed two civil suits in O.S.No.643 of 2019, on the file of the District Munsif Court, Madurai Town and O.S.No.645 of 2019, on the file of the District Munsif Court, Madurai Town, against the third respondent as well as the second respondent Bank for permanent injunction restraining them from interfereing with his possession.
5. According to the learned Counsel appearing for the second respondent, the suits filed by the petitioner are not maintainable in view of Section 34 of SARFAESI Act.
6. Mr.G.Prabhu Rajadurai, learned Counsel appearing for the petitioner submitted that the first respondent should have given an opportunity of hearing to the petitioner. The learned Counsel appearing for the petitioner relied upon two un-registered lease agreements alleged to have been executed on 03.06.2010 and 10.06.2010 for a period of two years.
7. It is settled law that if the lease agreement is executed for a period of one year or more, the same is compulsorily registrable, as per the provisions of the Registration Act. In the case on hand, the lease deeds relied upon by the petitioner are of the year 2010 and both are un-registered documents and the period of lease also came to an end in the year 2012. It is also pertinent to note that the borrowers filed an appeal challenging the possession notice before the Debts Recovery Tribunal, Madurai. However, the same has not been numbered, on the date of passing of the impugned order.
8. As against the order passed by the first respondent under Section 14 of the SARFAESI Act, the petitioner has got remedy by way of an appeal under Section 17 of the SARFAESI Act, before the Debts Recovery Tribunal. Without exhausting the alternate remedy, the petitioner has filed the writ petition challenging the said order.
9. The main contention put forth by the learned Counsel appearing for the petitioner is that no notice was issued to the petitioner and therefore the impugned order is liable to be set aside. Further the learned Counsel appearing for the petitiner submitted that the writ petition is maintainable as against the order passed by the first respondent under Section 14 of the SARFAESI Act. In support of his contentions, the learned Counsel relied upon the following judgments:
(i) In Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited and Others reported in (2014) 6 SCC 1, wherein the Honourable
