Heard both sides.
2.The petitioner is the auction purchaser of the property, which was brought to sale by the 3rd respondent, under the provision of the Securitisation Act. One T.Alesan borrowed a sum of Rs.2,00,000/- from the 3rd respondent and one P.Mallika stood as a guarantor for the loan and gave her property as security for the loan availed by Mr.Alesan. As the borrower committed default in the repayment of loan, the 3rd respondent invoked the provisions of Securitisation Act and issued notice under Section 13(2) of the Securitization and Re-construction of Financial Assets and Enforcement of Security Interest Act, on 27.01.2006 and as no payment was made, the 3rd respondent decided to take over the management of the property and therefore, symbolical possession was taken on 06.1.2006 and the property was sold by the 3rd respondent on 03.03.2007 to the petitioner and the sale was conducted after complying with the statutory provisions.
3.The 3rd respondent initiated action under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, by sending a representation dated 12.07.2007 to the 2nd respondent to take possession of the property, which was sold to the petitioner for the purpose of handing over the same to the petitioner. Unfortunately, the 2nd respondent did not take any action and the petitioner filed W.P.(MD)No.2560 of 2008 before this Court against the 2nd respondent to pass appropriate order on the said application. That application was allowed on 20.06.2008 and the 2nd respondent was directed to consider the application of the Bank viz., the 3rd respondent for taking possession and pass appropriate orders, within a period of eight weeks from the date of receipt of the copy of that order. Though the order was passed on 20.06.2008, no action has been taken by the 2nd respondent and hence, the contempt petition No.460 of 2008 was filed and thereafter, the 2nd respondent passed an order dated 21.11.2008 in Roc.C4/15702/08 directing the 1st respondent to take possession of the mortgaged property as shown in the schedule of properties in that order, owned by Mallika and hand over the same to the 3rd respondent.
4.It is further stated in that order, the order is subject to the outcome of the judgment in O.S.No.23 fo 2007 on the file of the Principal District Munsif Court, Tiruchendur and O.S.No.14 of 2008 on the file of the Sub Court, Tuticorin. Even after the passing of the order by the 2nd respondent on 21.11.2008, the 1st respondent did not take any steps to take over the possession of the property by the petitioner and hence, this writ petition is filed by the petitioner to implement the order of the 2nd respondent dated 21.11.2008.
5.One P.Karansingh, S/o. Late.A.Bhagavathinathan filed M.P(MD)No.1 of 2009 in this writ petition to implead himself as the 4th respondent stating that the property purchased by the petitioner belonged to his father A.Bhagavathinathan and after the death of his father, he is entitled to 1/3rd share in the property and he also filed Original Suit No.23 of 2007 on the file of the District Munsif Court, Tiruchendur, for partition of the properties and hence, the possession cannot be taken over by the 1st respondent in pursuance of the direction given by the 2nd respondent. The impleading petition was allowed and the petitioner in M.P.(MD)No.1 of 2009 was added as 4th respondent in the writ petition .
6.Mr.P.S.Sundaram, the learned counsel appearing for the 4th respondent, contended that the initiation of the proceedings by the petitioner is not valid and the 2nd respondent ought not to have directed the 1st respondent to hand over the possession of the property to the petitioner.
7.According to the learned counsel for the 4th respondent that the petitioner has no locus standi to seek a direction, directing the 2nd respondent to hand over the possession of the property, which was sold by the 3rd respondent on the ground that under Section 14 of Securitization and Re- construction of Financial Assets and Enforcement of Security Interest Act, only a secured creditor can approach the 2nd respondent for taking over the possession of the property. As the petitioner is not a secured creditor, he has no locus standi to initiate the proceedings directing the 2nd respondent to take possession of the property.
8.The learned counsel for the 4th respondent further contended that the property is a residential property belonged to his father and after the death of his father, he is entitled to 1/3rd share and his mother Mallika is only entitled to 1/3rd of the property and being a residential house, he is entitled to be in possession of the property and hence, the petitioner, who is the 3rd party, cannot take possession of the property and he has to work out his remedy only by filing a suit for partition.
9.Mr.G.Praburajadurai, the learned counsel appearing for the petitioner, submitted that action has been taken by the 2nd respondent only on the basis of the representation of the 3rd respondent dated 12.07.2008 and as no action was taken by the 2nd respondent, he filed the writ petition before this Court in W.P.(MD)No.2560 of 2009.
10.He would further submit that the property is the absolute property of Mallika and it is not the ancestral property of Bhagavathinathan and the sale deed also stood in the name of Mallika and the 4th respondent as no right over the property.
11.As rightly contended by Mr.G.Praburajadurai, the learned counsel appearing for the petitioner, the 3rd respondent sent a representation dated 12.07.2007 requesting the 2nd respondent to take action under Section 14 of the Securitization and Re-construction of Financial Assets and Enforcement of Security Interest Act to take the possession of the property, which was sold to the petitioner. When no action has been taken W.P.(MD)No.2560 of 2008 was filed by the petitioner seeking the help of this Court to direct the 2nd respondent to consider the representation of the 3rd respondent. Therefore, the petitioner was only instrumental in making the 2nd respondent to take action on the representation of the 3rd respondent, as the 2nd respondent failed in his duty to act on the representation of the 3rd respondent. It is also seen from the order of the 2nd respondent dated 21.11.2008 that action has been taken on the representation given by the 3rd respondent. Therefore, the argument of the learned counsel appearing for the 4th respondent viz., the petitioner has no locus standi to direct the 2nd respondent to take possession of the property and only the 3rd respondent can approach the 2nd respondent falls to the grounds as the 2nd respondent passed an order dated 21.11.2008 on the basis of the representation of the 3rd respondent and the order of the 2nd respondent cannot be assailed and it is valid in law.
12.The next submission of the learned counsel appearing for the 4th respondent is that being a residential house the petitioner though he purchased the property in the auction, cannot be given possession along with the co-owner, is also liable to be rejected. Admittedly, the property stood in the name of Mallika, the mother of the 4th respondent and she is alive.
13.The case of the 4th respondent is that the property belonged to his father Bhagavathinathan and hence, he is entitled to 1/3rd share in the property. Even assuming that the 4th respondent has got some right in the property and he also filed the suit O.S.No. 23 of 2007 on the file of the Principal District Munsif Court, Tiruchendur, a perusal of the plaint in O.S.No.23 of 2007 would prove that the 4th respondent is not in possession of the property sold to the petitioner. In O.S.No.23 of 2007, the 4th respondent prayed for partition of his 1/3rd share and for recovery of possession.
14.In the long cause title of that suit , he has given his address as No.7 Kovil Street, Settiapathu and Mallika is stated to be in possession of Door No.12, which is the property sold to the petitioner. The other sharer according to the 4th respondent, is living in Bombay. Therefore, even from the plaint averments in O.S. No.23 of 2007, the 4th respondent is not in possession of the property, which was sold to the petitioner and hence, he cannot object to the taking over of the possession of the property by the 1st respondent in pursuance of the order of the 2nd respondent.
15.This is a classic case, which exposes the lethargic attitude of the Revenue Officials, which resulted in filing of more writ petitions by the affected parties. Had the 2nd respondent taken action on the representation of the 3rd respondent, the petitioner would not have filed W.P.(MD) No.2560 of 2008 and even after an order was passed in that writ petition, the 2nd respondent was forced to pass the order dated 21.11.2008 only after a contempt petition was filed. Even after passing of the order dated 21.11.2008 by the 2nd respondent directing the 1st respondent to take possession of the property, the 1st respondent has not chosen to act on the order, even though more than eight months lapsed. Hence, the behaviour of the 1st respondent is highly condemnable and by reason of lethargic attitude of the respondent Nos.1 and 2, the Courts are flooded with the writ petitions and it is unfortunate that officials like the respondents 1 and 2, who are the highest officials in the District level are giving least importance to the High Court order.
16.As the petitioner has only prayed for implementing the order of the 2nd respondent, which the 1st respondent is obliged to do so, the 1st respondent is directed to take possession of the property mentioned in the order of the 2nd respondent dated 21.11.2008, within a period of 15 days from the date of receipt of the copy of this order and hand over the same to the 3rd respondent.
17.In the result, the writ petition is allowed. No costs.
er To,
1.The Revenue Divisional Officer, Tiruchendur.
2.The District Collector, Thoothukudi.
3. The Special Government Pleader, Madurai Bench of Madras High Court, Madurai.