BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/11/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P.(MD)No.10421 of 2008 and M.P.(MD)No.1 of 2008 Mr.J.Kishore Kumar ... Petitioner Vs. 1.The Recovery Officer, Debt Recovery Tribunal, Madurai. 2.Tamil Nadu Mercantile Bank Ltd., Represented through its Manager, Main Branch, Vengalakadai Street, Madurai. 3.M/s.Hrihar Pachamalai Plantations, Represented by its Partner P.R.K.Pajus Pattiveeranpatti, Nilakottai Taluk, Dindigul District. 4.P.R.K.Pajus 5.J.Bharaneedharan ... Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned notification dated 10.10.2008 in R.P.No.348 of 2007 on the file of the Respondent No.1 and quash the same as illegal and for a direction to issue a fresh sale proclamation for the second lot of the properties before auctioning the properties. !For Petitioner ... Mr.T.Lajapathi Roy ^For Respondent-2 ... Mr.ARM. Ramesh :ORDER
This petition has been filed to call for the records pertaining to the
impugned notification dated 10.10.2008 in R.P.No.348 of 2007 on the file of the
Respondent No.1 and quash the same as illegal and for a direction to issue a
fresh sale proclamation for the second lot of the properties before auctioning
the properties, by issuance of a writ of certiorafied mandamus.
2. The grievance of the petitioner as aired by the learned counsel for the
petitioner as well as from the averments set out in the affidavit accompanying
the writ petition, is to the effect that at the instance of the second
respondent Bank, the first respondent is taking steps to bring the secured
properties by way of recovering the loan amounts due payable by the principal
borrower, the Harihar Pachamalai Plantations, whereas Kishore Kumar, the
petitioner herein was only the guarantor who furnished immovable property
security; instead of selling the properties of the principal borrower by lot,
straight away the Bank is trying to sell the guarantor’s immovable property and
as such this writ petition is emerged.
3. Heard Mr.T.Lajapathi Roy, learned counsel appearing for the petitioner
and Mr.ARM.Ramesh, who took notice on behalf of the second respondent.
4. The learned counsel for the petitioner would submit that by selling the
first lot of the properties itself the entire dues could be recovered and it is
not necessary that the guarantor’s properties should be auctioned.
5. The learned counsel appearing for the second respondent in all fairness
would submit that any order passed or any act of the Recovery Officer, is
appelable and the writ petition would not lie; however the bank is not very
particular in proceeding as against the petitioner’s property at the first
instance itself; several attempts were made to auction the first lot of the
property which belong to the principal borrower, but it could not be sold for
want of bidders. The learned counsel for the second respondent bank would make
a supine submission to the effect that at the first instance itself, the
petitioner’s property would not be auctioned and sincere attempts would be made
to sell the immovable properties belonging to the principal borrower and in the
event of failing in such attempts only, the properties of the guarantor would be
proceeded against.
5. Recording the submission of the learned counsel for the second
respondent, the writ petition is disposed of. No costs. Consequently,
connected miscellaneous petition is closed.
Arul
To
1.The Recovery Officer,
Debut Recovery Tribunal,
Madurai.