Exclusive jurisdiction of the Debts Recovery Tribunal in addressing the petitioner's remedies and the inappropriateness of the court passing any order to restrain physical possession when the fault lies with the petitioner.

ORDER :

This writ petition has been filed in the nature of Mandamus, seeking a direction forbearing the Authorized Officer, Canara Bank, the 4th respondent herein from taking physical possession of the property which had been described as land in S.No.236/6, New S.No.236/38 measuring 2318 sq.ft., land in S.No.236/37 measuring 967 sq.ft., land in S.No.236/6, New S.No.236/39 measuring 2318 sq.ft., and land in S.No.236/37 measuring 967 sq.ft., at Thiruveethi Ammal Kovil First Street, Kottivakkam Village, Saidapet Taluk, Chennai, pursuant to a petition dated 27.06.2022 in C.M.P.No.263 of 2021 filed under Section 14 of the SARFAESI Act, 2002.

2. The petitioner had been at logger heads with the 4th respondent/Canara Bank with the issues swinging like a pendulum from one end to another end, but ultimately, though the debts payable had been crystallized, the 4th respondent had not been able to recover any amount as on date. There was an interim order directing the petitioner to deposit a sum of Rs.5,00,00,000/-. The petitioner had not complied with such deposit. The petitioner had also not preferred any appeal against the order of the Debts Recovery Tribunal, only because if any appeal was filed it would entail the petitioner to deposit 50% to 75% of the decree amount. The petitioner had therefore taken a conscious decision not to deposit such amount and not to file any appeal. The petitioner has taken an affinity to file writ petitions before this Court with an ostensible reason, that their possession should not be disturbed, and that though the 4th respondent have a lawful decree in their favour, they should be restrained from taking physical possession.

3. The proceedings had been initiated in the year 2013. There is an order in S.A.No.81 of 2014 dated 06.01.2015, which was originally S.A.No.58 of 2013 before the DRT – I, which was transferred to DRT – II. That was pursuant to an Application filed under Section 17 of the SARFAESI Act, filed by the petitioner herein to declare the possession notice dated 03.04.2013 as null and void and to pass necessary orders restraining the 4th respondent/Canara Bank from proceeding further against the secured assets. By order dated 06.01.2015, the petitioner suffered an order of dismissal and as against that particular order no appeal has been filed.

4.It had been very specifically stated by the 4th respondent that they had taken possession of the secured assets as per law and that there was no violation of any procedure as alleged.

5. Thereafter, once again the petitioner went back before the Debts Recovery Tribunal by filing S.A.No.135 of 2021. That application is still pending.

6. It is complained by the learned counsel for the petitioner, that it is pending without any orders being passed.

7. The facts are however otherwise.

8. After the order in 2015, a fresh demand notice was issued in the year 2020 and a fresh possession notice was ordered. Thereafter, the property had been sold, after a long winding process, by E-auction. The purchaser had been identified. The property had been sold. The purchaser had deposited the purchase amount. A Sale Certificate had been issued. The Sale Certificate had also been registered before the Sub-Registrar Office, Adyar.

9. The said purchaser has not been impleaded as a party in the present writ petition. The writ petition suffers on that one ground itself. He is a necessary and proper party and no order can be passed in his absence.

10. In S.A.No.135 of 2021, which is now re-posted on 16.02.2023, a direction had been given to the petitioner to implead the said purchaser as a party, but to the knowledge of this Court, no steps have been taken to implead the purchaser.

11. Questioning the sale, the petitioner had also filed another S.A again under Section 17 of the SARFAESI Act, 2002, but unfortunately, with delay and therefore, it had not been taken on record. The delay application can be examined only by the Tribunal.

12. It is stated by the learned counsel for the pet