IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.01.2010 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.25390 of 2009 and M.P.No.1 of 2009 Chennai Perunagar Motor Vagana Thozhilalar Sangam rep.by its General Secretary V.Kuppusamy, No.52, Cooks Road Chennai – 600 012. ...Petitioner Vs. 1. The Deputy Commissioner of Labour-II D.M.S.Campus, Teynampet Chennai – 600 006 2. Authorised Officer H.D.F.C.Bank Limited No.110, Nelson Manickam Road Chennai – 600 029 3. M/s.Arjun Associates Private Limited rep.by its Managing Director Mr.K.Sushil Joseph No.14, Harrington Road Chetpet, Chennai – 600 031. ...Respondents Prayer: Petition under Article 226 of the Constitution of India praying for a Writ of mandamus forbearing the second respondetn from alienating/auctioning the properties of the third respondent viz., flat bearing Nos.72/2 in First floor and 72/3 in Second Floor at Door No.72, Harrington Road, Chennai- 600 31 having an extent of 1939 Sq.ft and 898.80 Sq.ft. of built up area respectively inthe building namely "ALSA CRESCENT" at ALSA GARDENS, bearing new NO.58 (Old NO.72) at Gilchrist Avenue, Harrington Road, Chetpet, Chennai until the disposal of the arrears of salary and other benefits to the employees of the third respondent Company/ members of the petitioners Sangam. For Petitioner ::Mr.S.Gunaseelan For Respondent ::Mrs.K.Vishnupriya for R.1 Mr.Anand Afridi Vinoth for R.2 Mr.M.Gunasekaran for R.3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Petitioner is a trade union. They have filed the present writ petition seeking for a direction to the second respondent – authorised Officer, H.D.F.C.Bank Limited from alienating/auctioning the properties of the third respondent in respect of the two flats in the building namely "Alsa Crescent" at Alsa Gardens, bearing new No.58 Old No.72 at Gilchrist Avenue, Harrington Road, Chetpet, Chennai until the disposal of the arrears of salary and other benefits to the employees represented by the petitioner Union, who are employees of the third respondent and who are members of the petitioner union. 2. It is seen from records that the petitioner Union had a pending dispute with reference to service grievances of the employees of the third respondent before the Deputy Commissioner of Labour-II. They have also filed an application under Payment of Wages Act being P.W.No.4 of 2007 before the first respondent - controlling authority under the Payment of Wages Act. Even earlier, by his order in payment of Wages Application No.3 of 2007 dated 26.9.2008 the third respondent computed a sum of Rs.9,07,770/- as due and payable to the various workmen set out in the Schedule to the Act. The further claim is also pending with the same authority. It is also stated that the petitioner Sangam is paying the maintenance charges towards two flats and they have a pre-eminent right to the outcome of the said flats. 3. However, it is now brought to the notice of this Court that the second respondent Bank viz., HDFC Bank had invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short, SARFAESI Act"), and had attached the said properties. They have also moved the Chief Metropolitan Magistrate, Chennai under Section 14 for a direction to hand over the flats in question in terms of Section 13 (2) of the SARFAESI Act. An Advocate Commission has been issued by warrant for recovering the possession of the flats. It is in these circumstances the petitioner Union has filed the present writ petition. It is also seen that they have also filed a suit earlier before the City Civil Court, Chennai in O.S.No.6542 of 2008 against the third respondent Company and its Managing Director from alienating the properties. Subsequently, they filed another suit in O.S.No.7815 of 2009 for a permanent injunction against the second and third respondents from selling the properties. However, no interim order was obtained by them. 4. When the writ petition came up on 11.12.2009, notice of motion was ordered. Pending the notice of motion, an interim order was also granted by this Court. Subsequently, when the matter came up before this Court, it was pointed out that such a writ petition is not maintainable. 5. It is to be seen from the SARFAESI Act that Section 34 excludes jurisdiction of Civil Court in respect of matters which are covered by the Act. Section 35 of the Act has a overriding effect https://hcservices.ecourts.gov.in/hcservices/ over other laws. In the present case, the provisions of the SARFAESI Act are being invoked by the second respondent and the properties are sought to be auctioned. Therefore, the petitioner cannot prevent the auction being taken place. If at all they have any accrued claim towards the wages of the workers,they will have to move the Sale Officer under the provisions of the Act and Rules framed thereunder. The powers of the authorities under the Act for bringing sale of immovable security assets have been set out under Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002. Rules 9(7) and 9(8) reads as follows: "9. Time of sale, issue of sale certificate and delivery of possession, etc.- ..... (7) Where the immovable property sold is subject to any encumbrances, the authorised officer may, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him. (8) On such deposit money for discharge of the encumbrances, the authorised officer may issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make the payment accordingly...." Therefore, the petitioners will have to file appropriate application before the authorised officer staking their claim and in case of sale of the property and the amounts are kept in deposit, it is only from out of those amounts the petitioners can get any payment and not by stalling the auction by the second respondent. Further, the petitioners are continuing the civil suit also. In the light of the above, this Court is not inclined to grant the relief sought for in the writ petition. 6. With the above observations, the writ petition stands dismissed. No costs. Connected miscellaneous petition stands closed. Sd/- Asst. Registrar /true copy / Sub Asst.Registrar usk Copy to: 1. The Deputy Commissioner of Labour-II D.M.S.Campus, Teynampet Chennai – 600 006 https://hcservices.ecourts.gov.in/hcservices/ 2. Authorised Officer H.D.F.C.Bank Limited No.110, Nelson Manickam Road Chennai – 600 029 1CC To the Government Pleader, High Court, Madras (SR.4475) 1CC to Mr.S.Gunaseelan, Advocate (SR.4475) W.P.No.25390 of 2009 LA (CO) SS (02.02.2010) https://hcservices.ecourts.gov.in/hcservices/