1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.03.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.1990 of 2011 And M.P.(MD).No. 1 of 2011 Raj Academy Matriculation School Rep. by its Correspondent Aruvikuzhivilai Junction Maruthamcode Vilavancode Taluk Kannyakumari District : Petitioner Vs 1. The Authorised Officer Housing Development Finance Corporation Ltd., Advocate Dharmaraj Complex Nagercoil 2. The Authorised Officer Housing Development Finance Corporation Ltd., HDFC House, Vazhuthacaud Trivandrum – 695 010 3. The Inspector of Police Marthandam Police Station Kanniyakumari District : Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents not to interfere in the administration of the petitioner school in Survey Nos. 135/7, 8, 10 and 11 at Vacode Village, Vilavancode Taluk, Kanyakumari District, without due process of law and to pay the appropriate compensation for closing the school of the petitioner. For petitioner : Mr.Veera Kathiravan For RR 1 & 2 : Mr. Palaramasamy Special Government Pleader For 3rd Respondent : Mr.K.Balasubramanian Additional Government Pleader O R D E R The petitioner has come forward with this Petition praying to direct the respondents not to interfere in the administration of the petitioner school in Survey Nos. 135/7, 8, 10 and 11 at Vacode Village, Vilavancode Taluk, Kanyakumari District, without due process of law and to pay the appropriate compensation for closing the school of the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The learned counsel appearing for the petitioner would contend that Raj Academy Matriculation School is being conducted by the wife of the borrower with the second respondent bank. According to him, the school is running in S.Nos. 135/5, 7, 8 and 11 at Vacode Village and the said premises where the school is running, has not been mortgaged nor the security assessed for any of the loan transaction with the respondents 1 and 2. But suddently, on 05.02.2011, the respondent bank taking action under the SARFAESI Act in respect of the loan advanced to the petitioner's husband, has locked the premises and thereby obstructed the running of the school. His only contention is that the action of the respondent in respect of the property where the school is running, which is not mortgaged to the bank. Therefore, the petitioner has come forward with this Writ Petition seeking for Mandamus not to interfere in the administration of the petitioner school in Survey Nos. 135/7, 8, 10 and 11. 3. On notice, Mr.Pala Ramasamy, learned Special Government Pleader has filed a detailed counter affidavit. He would contend in paragraph 10 of the counter affidavit reads as hereunder:- ''Our corporation will not interfere in the administration of the petitioner school in S.No. 135/7, 8, 10 and 11 without due process of law. Our company officials have not closed the school, building in S.No. 135/7, 8, 10 and 11 as alleged in the affidavit. Our corporation has never interefered in the administration of the petitioner school in S.No. 135/7, 8, 10 and 11 at any point of time and hence, we are not liable to pay any compensation.'' 4. His only contention is that they have taken action under the SARFAESI Act only in respect of the mortgage property, namely, 25 cents and the building constructed thereon in respect of S.No. 135/12 and they will not take any action as against Survey Nos. 135/7, 8, 10 and 11. He has also filed a plan singed by the original borrower identifying the property, namely, S.No. 135/12 at the time of proposal of granting loan. Therefore, his only contention is that any action under the SARFAESI Act, no writ would lie and the borrower is not the party in this Writ Petition. He would further submit that there is an effective alternative remedy available for the petitioner before the D.R.T., as per the Judgment in United Bank of India Vs. Sathyawathi Tandon and Ors reported in 2004(7) SCALE 696 and the Judgment in Manu/TN/1949/2010, Hema Bushan Vs. ICICI Bank. Hence, the Writ Petition is not maintainable. 5. Heard both sides. 6. The short point for consideration as against the action taken by the Bank under the SARFAESI Act, there cannot be any remedy available before the Writ Court as per the decision of the Supreme Court as well as this Court. The only contention raised by the petitioner herein is that he has not challenged the Act of the bank under the SARFAESI Act. He has only stated that under the guise of SARFAESI Act, what was not mortgaged, should not be interefered with. The petitioner is the owner of the property in S.Nos.135/7, 8, 10 and 11, for which, the mortgage has not been created and therefore, the action of sealing the premises of the school is not correct. The respondents 1 & 2 have filed a counter clearly stating that they have not taken any action in so far as it relates to S.F.No. 135/7, 8, 10 & 11, https://hcservices.ecourts.gov.in/hcservices/ 3 whatever action taken is only in respect of S.F.No. 135/12 which is the subject matter fo the mortgage. 7. Recording the submissions of the learned advocate Mr.Pala Ramasamy and the pleading in paragraph 10 of the counter affidavit, they are not in any way interefering with the petitioner's possession and enjoyment of the property, which is not the subject matter of the mortgage. It is suffice to state that recording the statement of the Bank in Paragraph 10 of the counter affidavit, the petitioner's apprehension is not at all warranted, further the Bank will not interefere in the petitioner running the school in S.Nos. 135/7, 8, 10 and 11 as per their counter. 8. With the aforesaid observation, this Writ Petition is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar (P& A) /True copy/ Sub Assistant Registrar(C.S) To 1. The Authorised Officer Housing Development Finance Corporation Ltd., Advocate Dharmaraj Complex Nagercoil 2. The Authorised Officer Housing Development Finance Corporation Ltd., HDFC House, Vazhuthacaud Trivandrum – 695 010 3. The Inspector of Police Marthandam Police Station Kanniyakumari District +1 CC to the Special Government Pleader, SR.No.7373 vsg W.P.(MD).No.1990 of 2011 And M.P.(MD).No. 1 of 2011 21.03.2011 TR : 01.04.2011 : 3p/5c https://hcservices.ecourts.gov.in/hcservices/