W.P.(MD).No.532 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 14.07.2022

CORAM

THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR

W.P.(MD).No.532 of 2022

and

W.M.P.(MD).No.409 of 2022

M/s.Cholamandalam Investment

and Finance Company Limited

Represented by its Authorised Signatory.

... Petitioner

Vs.

1.The Principal Commissioner,

Income Tax Department,

No.2, V.P.Rathinasamy Nadar Road,

Bibikulam,

Madurai – 625 002.

2.The Assistant Commissioner,

Income Tax Department,

Central Circle 2 Madurai,

Kulamangalam Main Road,

Meenambalpuram,

Madurai – 625 002.

3.The Joint Commissioner,

Office of Additional / Joint Commissioner

of Income Tax Department,

No.19A, WGC,

Tuticorin – 628 001.

1/14

https://www.mhc.tn.gov.in/judis

W.P.(MD).No.532 of 2022

4.Tax Recovery Officer

TRO 1 Madurai,

Income Tax Office – Madurai MA,

No.2, V.P.Rathinasamy Nagar Road,

C.R. Building, Bibikulam,

Madurai – 625 002.

...Respondents

Prayer : Writ Petition filed under Article 226 of the Constitution of India,

praying this Court to issue a Writ of Certiorarified Mandamus, calling for the

records pertaining to the order dated 02.11.2021 in TRC.

No.672/TRO/MDU/2021-22 by the fourth respondent quash the same and

consequently direct the fourth respondent to raise the order of attachments

dated 20.03.2017, 09.10.2017, 06.12.2017 and 09.07.2018 on the Mortgaged

Property / Secured Asset being Door No.205 and 205A in T.S.No.332/3 part in

Ward No.35, Block No.9, George Road, Tuticorin.

For Petitioner

: Mr.K.J.Parthasarathy

For Respondents

: Mr.N.Dilip Kumar,

Standing Counsel.

ORDER

The petitioner herein, who is the Cholamandalam Investment and

Finance Company Limited, has filed this Writ Petition to quash the order

passed by the fourth respondent dated 02.11.2021 and consequently direct the

fourth respondent to raise the order of attachments dated 20.03.2017,

2/14

https://www.mhc.tn.gov.in/judis

W.P.(MD).No.532 of 2022

09.10.2017, 06.12.2017 and 09.07.2018 on the Mortgaged Property / Secured

Asset being Door Nos.205 and 205A in T.S.No.332/3 part in Ward No.35,

Block No.9, George Road, Tuticorin.

2. The petitioner is a non-banking finance company registered under the

Companies Act, 1956 and notified as a financial institution under the

Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002. The petitioner is a secured creditor and the subject

property being Door Nos.205 and 205A in T.S.No.332/3 part in Ward No.35,

Block No.9, George Road, Tuticorin is the secured asset of the petitioner. The

borrowers, R.Thanabalan (Sri Sivasankar Timber and Tiles) and T.Sathish

Kumar (Sivasankar Traders) had availed loan of Rs.2,30,00,000/- executed loan

agreement dated 29.01.2015, agreeing to repay the said sum in 122 and 104

EMIs of Rs.1,44,661/- and Rs.3,50,231/-. The borrowers had availed loan

under variable rate of interest. At the time of sanction, it was 13.50% and the

present rate of interest is 14.15%. The borrowers had also created equitable

mortgage over the secured asset by deposit of title deeds on 19.02.2015

registered as Document No.190/2015 in the office of the Sub Registrar,

Tuticorin Joint II.

3/14

https://www.mhc.tn.gov.in/judis

W.P.(MD).No.532 of 2022

3. As per the loan agreement, if there is any default in EMI, the loan

would be declared as NPA. In this case, the borrowers had defaulted and their

loan account declared as NPA on 05.08.2016. As secured creditor, the

petitioner initiated recovery proceedings under the provisions of SARFAESI

Act by causing demand notice, under Section 13(2) of the Act, dated

30.09.2016, calling upon the borrowers to discharge the debt within 60 days.

This notice was duly served on the borrowers on 10.10.2016. The borrowers

failed to comply with the demand made in 13(2) notice