IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.11.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 1805 to 1807 of 2011 and M.P. Nos. 1 to 1 of 2011 CMA No. 1805 & 1806 of 2011 T. Santhi .. Appellants in CMA No. 1805 and 1806 of 2011 Versus 1. The Karnataka Bank Limited rep. By its Senior Manager Anna Nagar Branch W-123, III Avenue Anna Nagar, Chennai – 600 040 2. Sri Neelambigai Textiles (P) Ltd rep. By its Managing Director No.7, Alsa Regency No.165, Eldams Road Alwarpet, Chennai – 600 018 3. M/s. Thillai Nataraj Chits (P) Ltd rep. By its Managing Director No.7, Alsa Regency No.165, Eldams Road Alwarpet, Chennai – 600 018 4. M/s. Alsa Regency rep. By its President No.165, Eldams Road Alwarpet, Chennai – 600 018 5. The Asset Reconstruction Company (India) Ltd having registered office at Shreepati Arcade A.K. Marg, Nana Chowk Mumbai – 400 036 rep. Through its constituted attorney (R5 impleaded as per the Order dated 04.11.2011 made in MP Nos. 2 & 3 of 2011 in CMA No. .. Respondents 1 to 5 in 1805 and 1806 of 2011) CMA Nos. 1805 & 1806 CMA No. 1807 of 2011 T. Santhi .. Appellant https://hcservices.ecourts.gov.in/hcservices/ Versus 1. The Karnataka Bank Limited rep. By its Senior Manager Anna Nagar Branch W-123, III Avenue Anna Nagar, Chennai – 600 040 2. The Asset Reconstruction Company (India) Ltd having registered office at Shreepati Arcade A.K. Marg, Nana Chowk Mumbai – 400 036 rep. Through its constituted attorney (R2 impleaded as per the Order dated 04.11.2011 made in MP No. 1 of 2011 in CMA No. 1807 of 2011) .. Respondents Appeals filed under Order XLIII, Rule 1 (r) of CPC against the Common order dated 25.02.2011 made in I.A. Nos. 78, 44 and 43 of 2010 in O.S. No. 9746 of 2010 on the file of the Additional District Judge, Fast Track Court, No.1, Chennai. For Appellant : Mr. R. Thiagarajan in all the appeals For Respondents : Mr. S.R. Raghunathan for R1 in all the appeals COMMON JUDGMENT All these three appeals arise out of the common order dated 25.02.2011 made in I.A. Nos. 78, 44 and 43 of 2010 in O.S. No. 9746 of 2010 on the file of the Additional District Judge, Fast Track Court, No.1, Chennai. Therefore, all these three appeals are taken up together and are disposed of by this common judgment. 2. The appellant has filed the suit in O.S. No. 9746 of 2010 (C.S. No. 163 of 2005) praying for a declaration to declare that she is the bonafide purchaser of the suit property from the third defendant in respect of shop premises bearing No.7 in the complex known as Alsa Regency, morefully described in the schedule of the plaint; for a declaration to declare that the proceedings initiated by the first defendant in O.A. No. 668 of 2001 before the Debt Recovery Tribunal-II, Chennai as against the second and third defendants in relation to the plaint mentioned property is illegal, invalid and non-est in the eyes of law and to declare the same as illegal and consequently not binding on the plaintiff; for a consequential injunction restraining the first defendant or his men from bringing the suit property for sale on 24.02.2005 at 2.30 pm or on the subsequent dates for the alleged liabilities of the second and third defendants, except in accordance with law; for a permanent injunction restraining the defendants 1 to 4, their men, servants or agents from interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for costs. https://hcservices.ecourts.gov.in/hcservices/ 3. Pending suit, the plaintiff/appellant has filed I.A.Nos. 43 and 44 of 2010 (O.A. Nos. 197 and 198 of 2005) for restraining the defendants from bringing the property for auction sale and not to interfere with her possession of the the suit property and obtained interim injunction on 23.02.2005 restraining the bank from bringing the property for auction sale. As against the same, the first defendant/bank has filed I.A. No. 78 of 2005 (O.A. No. 3441 of 2010) for vacating the interim injunction. All these applications were taken up together and by a common order dated 25.02.2011, the Court below vacated the interim injunction granted in favour of the appellant and consequently allowed the application filed by the first respondent/bank. As against the same, the present appeals are filed. 4. The learned counsel appearing for the appellant would contend that the appellant filed the suit by contending that she is a bonafide purchaser of the suit property from the third defendant for a valuable consideration and after purchase, she had also mutated the revenue records and she has even mortgaged the suit property with Indian Bank, for the purpose of getting educational laon for her son by depositing the title deeds and the original title deeds are in the custody of Indian Bank. Therefore, according to the appellant, she is in lawful possession and enjoyment of the suit property as an owner thereof. According to the appellant, the first respondent/bank, claiming that the respondents 2 and 3 have created an equitable mortgage over the suit property in their favour have brought the suit property for auction sale by initiating proceedings before the Debt Recovery Proceedings, which was objected to by her. Thereafter, she filed the present suit for the reliefs mentioned above. Pending suit, the appellant has filed the I.A. Nos. 43 and 44 of 2010 to safeguard the property from being alienated by the first respondent/bank. Even though an interim injunction was granted, it was vacated by the court below at the instance of the first respondent/bank, without assigning any valid reasons, hence, the present civil miscellaneous appeals have been filed. 5. The learned counsel for the first respondent/bank would vehemently contend that the third respondent has effected an equitable mortgage in respect of the suit property in favour of the first respondent bank as security for the advances availed by the second respondent as early as in the year 1996 and committed default in payment of the mortgage amount. Therefore, the bank has already filed O.A. No. 668 of 2001 before the Debt Recovery Tribunal-II Chennai for recovery of a sum of Rs.54,14,365/- and the Original Application was allowed on 14.08.2003. Subsequent to the decree passed by the Tribunal, the first respondent also obtained Debt Recovery Certificate No. 52 of 2004 and thereafter, the first respondent sought to bring the property for auction sale by executing the decree. At that time, the appellant raised her objection before the Tribunal by producing the copies of the alleged original documents of title before the Recovery Officer, Debt Recovery Tribunal-II, Chennai. The first respondent also produced the documents to substantiate their claim. Both the documents were examined by the Recovery Officer and it was found that the endorsement regarding the stamp, value and stamp paper numbers and dates in the documents furnished by the appellant did not match the https://hcservices.ecourts.gov.in/hcservices/ relevant register maintained by the Sub-registrar Officer concerned and the endorsement in respect thereof in the certified copies of the sale deeds dated 20.05.1994. The Recovery Officer also noted several other errors in the documents submitted by the appellant and found that the power agent of the appellant, who executed the sale deed in favour of the appellant, was none other than the husband of the appellant and therefore, the Recovery Officer negatived the claim made by the appellant by an order dated 16.02.2005. As against the same, the appellant has not preferred any appeal but filed the present suit and obtained interim injunction on 23.02.2005 within one week without disclosing the proceedings before the Debt Recovery Tribunal and the order of rejection passed by the Recovery Officer. In fact, the Recovery Officer has categorically given a finding that the documents, which were produced by the appellant through the Indian Bank, which were mortgaged by her, are forged documents and they are not genuine documents and therefore, the purchase of the suit property by the appellant from the respondents 2 and 3 is a sham and nominal purchase especially when the suit property was purchased by the appellant through the power of attorney of the respondents 2 and 3 who is none other than her husband. The present suit has been filed by the appellant only to stall the proceedings initiated by the first respondent/bank before the Debt Recovery Tribunal. Considering all these aspects, the court below rightly rejected the applications filed by the appellant seeking interim injunction and allowed the vacate stay application filed by the first respondent herein by assigning valid reasons. Therefore, he prayed for dismissal of the appeals. 6. Heard the counsel for both sides and perused the records. The point for consideration in these appeals is whether the appellant is entitled for the relief of injunction as prayed for. 7. The dispute involved in the present appeal lies in a narrow campus. The plaintiff/appellant alleged that she is the bonafide purchaser of the suit property, having purchased the same from the respondents 2 and 3 through their power of attorney. The property was purchased by the plaintiff/appellant after discharging the mortgage of the erstwhile owner. The plaintiff/appellant also contended that subsequent to the purchase, she mortgaged the title deeds relating to the suit property with Indian Bank and availed an educational loan for her son. Therefore, the plaintiff/appellant would claim that she is the owner of the suit property having purchased it for a valuable sale consideration. 8. It is seen from the records that the first respondent/bank initiated recovery proceedings as early as in the year 2001 by filing O.A. No. 668 of 2001 before the Debt Recovery Tribunal, Chennai – II against the respondents 2 and 3 on the ground that the respondents 2 and 3 have created equitable mortgage in their favour by deposit of title deeds and availed loan, but failed to remit the dues to the bank. On the contrary, the appellant also claimed that she purchased the suit property from the respondents 2 and 3, through their power of attorney agent. It is also seen that the documents, by which the appellant said to have purchased the suit property from the respondents 2 and 3 bears the same number. It is also to be stated that the O.A.No. 668 of 2001 filed by the bank was decreed as early https://hcservices.ecourts.gov.in/hcservices/ as on 14.08.2003 and thereafter the property was brought for auction sale. At that time, the appellant objected to the same by filing necessary application before the Debt Recovery Tribunal, Chennai. For examination of the claim made by the appellant as well as the first respondent, the Recovery Officer of the Tribunal conducted a detailed enquiry and found that the document, by which the suit property was purchased by the appellant and mortgaged with Indian Bank is not a genuine document for various reasons. The Order passed by the Recovery Officer on 16.02.2006 would indicate the following:- "On 16.02.2005, neither the petitioner nor her counsel attended the hearing. The certified copies of the document Nos. 457 to 459 of 1994 in SRO, Central Madras were produced before me today i.e., 16.02.2005. The documents were perused and even the cursory look would convey that the documents given by the applicant bank as proof affidavit are the genuine one and the documents produced on behalf of the petitioner are only sham documents. However, for the sake of elaboration, I am listing the discrepancies in the documents produced by the petitioner vis-a-vis the documents of the applicant bank hereunder:- i) The stamps in the sale deeds in Doc.Nos. 457 to 459 of 1994 are dated 31st March 1994 confirming to the narration in the Sub-Registrar's documents. Whereas, the petitioner's documents have different dates like 20th May, 1994 etc., ii) The denomination of stamps does not tally with the narration in the Sub-registrar's copy documents in respect of all the three documents. For example in Doc.No.457 of 1994, the following stamps are affixed as per the narration:- Rs.1000-1 No, Rs.100-4 Nos, Rs.20-1 No. and Rs.10-1 No. The original document of the applicant bank has the above denomination stamps. Whereas in the document produced by the petitioner, the denomination of stamps are as under: Rs.1000-1 No., Rs.500-1 No. and Rs.10-1 No. The same is the case in respect of other two documents also. iii) The seals purported to have been affixed by the Registration Department in the petitioner's documents have several mistakes, both in English and Tamil. https://hcservices.ecourts.gov.in/hcservices/ The word "CERTIFY" is misspelt as "CERTY" The words 'District Registrar' is misspelt as "District Registrict' The word 'KNOWN' is misspelt as 'KMDWN' There are similar mistakes in Tamil seals also. iv) As already pointed out earlier, the Advocate seal of the Advocate who had drafted the sale deeds also has glaring mistakes and there are several deviations in signatures affixed by Registration Department officers. Dspite there is no formal petition from the Indian Bank, their claim was also taken into consideration by way of verification of the documents and as already illustrated, the documents possessed by them are not genuine. The applicant bank, M/s. Karnataka Bank Ltd., has prior and valid mortgageexisting in their favour. Therefore, the claim of Indian Bank cannot be allowed on any grounds. Further, going through the documents, it is found that the said petitioner T. Shanthi had purchased the property from the power agent Shri. M. Thirupathi. Shri. M. Thirupathi is none other than the husband of the petitioner as admitted by herself in the said alleged documents. Therefore, the nexus between the seventh defendant M/s. Thillai Natarajan Chits (P) Ltd., the power agent Shri. M. Thirupathi and the present petitioner is obvious. The claim of the petitioner fails on every count. In view of the above ratio-decidendi, I dismiss the above petitions." 9. This order passed by the Recovery Officer was not challenged by the appellant. Conveniently, the appellant filed the present suit before this Court in C.S. No. 163 of 2005 and obtained interim order on 23.02.2005 i.e., within 7 days after the order passed by the Recovery Officer on 16.02.2005, without disclosing the proceedings of the Recovery Officer. Subsequently, due to the increase in the pecuniary jurisdiction, the matter was taken up before the Court below and re-numbered as O.S. No. 1746 of 2010 and ultimately, by the impugned common order, the claim of the appellant was rejected. 10. The above facts would reveal that the appellant had attempted to stall the proceedings at various stages and the appellant has not truly disclosed the facts at the time of filing the present suit. In fact, this was also commented upon by the court below that under the guise of settlement, the appellant had taken substantial time and prevented the court below from disposing the interim applications. Therefore it is clear that the appellant, in order to prevent the property from being auctioned by the first https://hcservices.ecourts.gov.in/hcservices/ respondent/bank, conveniently filed the suit and obtained interim injunction and dragged on the matter without being disposed of one way or the other. The appellant also purchased the suit property knowing fully well the proceedings initiated by the first respondent/bank. Under those circumstances, the reasons given by the Court below for rejecting the claim of the appellant are convincing. 11. In the decision rendered by the Honourable Supreme Court in (United Bank of India vs. Satyawati Tondon and others) III (2010) BC 495 (SC) wherein in para Nos. 17 and 18, it was held thus:- 17. ...Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 18. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self- imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order. (underlining added). 12. It is very clear from the aforesaid decision of the Honourable Supreme Court that if the statute provides a particular forum for appeal, then the party should have chosen the same. In this case, even though the appellant had filed her objections and it was rejected by the Recovery Officer by assigning reasons, the appellant has not filed any appeal before the Debt Recovery Appellate Tribunal assailing the order of the Recovery Officer. On the other hand, the appellant has conveniently filed the present suit by suppressing the proceedings before the Debt Recovery Tribunal, hence, I am of the view that the court below is justified in dismissing the applications filed by the appellant 13. Therefore, in the light of the above decision of the Honourable Supreme Court and considering the fact that the appellant had filed the suit and obtained interim order only to prevent the first respondent/bank to execute the decree lawfully obtained by https://hcservices.ecourts.gov.in/hcservices/ them, I am of the view that the appeals deserved to be dismissed as there are no merits. 14. In the result, all the appeals are dismissed with costs. Consequently, connected miscellaneous petitions are closed. The court below shall dispose of the suit as early as possible. rsh IN THE HIGH COURT OF JUDICATURE AT MADRAS Appeal Against Order No.1805 to 1807 of 2011 MEMORANDUM OF CASES Respondent ( ) Costs Rs.P. Stamp for Vakalatnama ... .. 10.00 Advocate's fee F.C.Not received .. Translation Printing Charges .. Nil -------- Typing To be paid by the Petitioner ------- to the Respondent 10.00 ------- Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Additional District Judge, Fast Track Court No.I, Chennai. 2 cc to Mr.R.Thiagarajan, Advocate, Sr.No.73775 1 cc to Mr.S.R.Rajagopal, Advocate, Sr.No.73887 Common Judgment in CMA Nos. 1805 to 1807 of 2011 JRG {CO} TP/12.1.2012. https://hcservices.ecourts.gov.in/hcservices/