1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:14.09.2011 CORAM: THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P(MD)No.10421 of 2011 and M.P(MD)No.1 of 2011 D.Raja .. Petitioner Vs. 1.The Ministry of Finance, Department of Economics Affairs, Banking Division, Rep. by Secretary, New Delhi. 2.Dewan Housing Finance Corporation Ltd., Dheeraj Arma 6th Floor, Anant Kanekar Marg, Bandra (E) Mumbai - 400 051. 3.Dewan Housing Finance Corporation, Ltd., Rep. by its Authorised Officer, 11/2, First Floor, Tiruchendur Road, Palayamkottai, Tirunelveli. .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus forbearing the respondents herein from taking possession under Section 14 of the Securitization and Re- construction of Financial Assets and Enforcement of Security Interest Act, 2002 pertaining to the property of the petitioner situated in Ayan Punjai Survey No.661/7, formerly Ward No.14, New Ward No.1, Lakshmi Narasingapuram Kstryar Nadar Street, to an extent of 475 sq. feet including the house bearing Door No.10, Nadar Street, L.N.S.Puram, Eruvadi, Tirunelveli District, pending disposal of the Writ Petition. For Petitioner : Mr.S.Kadarkarai For Respondents : Notice is dispensed with O R D E R This Writ Petition has been filed to forbear the respondents from taking possession under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 pertaining to the property of the petitioner situated in Ayan Punjai Survey No.661/7, formerly Ward No.14, New Ward No.1, Lakshmi Narasingapuram Kstryar Nadar Street, to an extent of 475 sq. feet including the house bearing Door No.10, Nadar Street, L.N.S.Puram, Eruvadi, Tirunelveli District. 2. Heard Mr.S.Kadarkarai, learned counsel for the petitioner. 3. In view of the order that is to be passed, notice to the respondent is dispensed with. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The Writ Petition has been filed to forbear the respondents from proceeding to take possession in terms of Section 14 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "the Act"). 5. The Writ Petitioner is a borrower under the third respondent and the second respondent issued notice under Section 13(2) of the Act, dated 22.10.2009 calling upon the petitioner to pay in full and discharge the liabilities aggregating to the tune of Rs.7,99,042/-, within sixty days from the date of notice. In the said notice, it was thereafter mentioned that if the petitioner fails to pay the amount as specified, action will be taken to take possession of the security assets in terms of sub-section 4 of Section 13 of the Act. Reply notice was given by the petitioner on 12.11.2009. The petitioner states that he has filed O.S.No.698 of 2009 before the District Munsif Court, Tirunelveli and the learned counsel for the petitioner fairly states that the suit has been dismissed. On 17.02.2010, in exercise of power under Section 13(4) of the Act r/w Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002, the possession of the property was taken. Possession notice was also published in the newspapers viz., "Indian Express" and in “Dinamalar” on 18.02.2010. Thereafter, the second respondent filed an application before the Chief Judicial Magistrate, Tirunelveli for appropriate orders under Section 14 of the Act. The relief sought for is as follows: "9.The Applicant therefore prays that this Hon'ble Court may kindly be pleased to pass the following orders: a) Appropriate order and direction may be issued to take possession of the secured asset described in the schedule hereunder and to hand over the same to the applicant. b) Appropriate order and direction be issued for such steps and use of force by the concerned Eruvadi Police station as may be necessary to take possession of the secured asset from whomsoever found in possession and to hand over the possession of the same to the Applicant Company through the Authorised Officer. c) Appropriate order to break open the lock, if the secured asset is found locked. d) For such further and other reliefs as this Hon'ble Court may deed fit and proper in the circumstances of the case." 6. The matter is pending and at this stage, the Writ Petition has been filed to forbear the authorities from proceeding in terms of Section 14 of the Act. The Writ Petition on this score is totally misconceived as proceedings under Section 14 of the Act is a consequence of proceedings initiated under Section 13 of the Act, which order has been served on the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 3 7. Right of appeal is given to the person, whose property has been subjected to proceedings under Section 13 of the Act. The petitioner having failed to pursue the right of appeal challenging the proceedings initiated under Sub-Section 4 of Section 13 of the Act, the Writ Petition filed to forbear the authorities from proceeding in terms of Section 14 of the Act is totally misconceived. If the order under Section 13(4) of the Act viz., the possession order, is not challenged in the manner known to law, the petitioner cannot justify and question the proceedings under Section 14 of the Act. 8. The Writ Petition appears to be a devious method to get over the limitation prescribed under the Act. The Writ Petition lacks bona fides and is intended only to get over the laches on the part of the petitioner. 9. For all the above reasons, finding no merits, the Writ Petition is dismissed at the admission stage. No Costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (Crl.side) /True copy/ Sub Assistant Registrar(C.S) To 1.The Ministry of Finance, Department of Economics Affairs, Banking Division, Rep. by Secretary, New Delhi. 2.Dewan Housing Finance Corporation Ltd., Dheeraj Arma 6th Floor, Anant Kanekar Marg, Bandra (E) Mumbai - 400 051. 3.Dewan Housing Finance Corporation, Ltd., Rep. by its Authorised Officer, 11/2, First Floor, Tiruchendur Road, Palayamkottai, Tirunelveli. +1. CC to Mr.S.Kadarkarai, Advocate, SR.No. 31487 pm W.P.(MD)No.10421 of 2011 14.09.2011 TR :11.10.2011: 3p/5c https://hcservices.ecourts.gov.in/hcservices/