The first respondent's husband and others running a business under the name and style Messrs. R.A.V. Textiles Private Limited and they availed financial facilities from Indian Overseas Bank, Oppanakara Street, Coimbatore. Proceedings were initiated before the Debt Recovery Tribunal, Coimbatore in T.A.No.562 of 1997 and the same was transferred to the Debt Recovery Tribunal, Chennai II, and renumbered as 172 of 2001. On 31.10.2001, the plaintiff bank filed a memo informing the Court that the defendants jointly and severally undertake to pay the balance under One Time Settlement (OTS).
2. Transfer Application No.780 of 2002 was filed before the Debt Recovery Tribunal at Coimbatore by Indian Overseas Bank arraying the above said establishment, R.A. Vairam, Anbalagan, Subramanian (since deceased), Venugopal, V. Kalyani and others. The final order was passed in the said application on 24.09.2003 directing to issue recovery certificate. Inter alia, it is stated in this proceedings that neither the defendants appeared nor represented by their counsel on 05.08.2003 and 14.08.2003 and hence they were called absent on 14.08.2003, set ex-parte and D-3 was already set ex-parte on 17.10.1997.
3. Thereafter, Recovery Officer issued order of attachment of immovable property belonging to the company and then a notice for settling proclamation of sale was also issued.
4. The guardian of the first respondent S. Kalyani, whose husband is R.A. Vairam; Latha and Kavitha are their daughters. Murugavel, aged about 29 years is stated to be mentally ill and physically disabled person, who is under the intensive supervision of psychiatrist and neurologist. The said Kalyani has filed M.H.O.P.No.22 of 2009 on the file of the District Judge, Namakkal, under
Section 50,51,52,53,54 and
61 of the Mental Health Act 1987, for the reliefs of appointing her as guardian for her son Murugavel, for permanent injunction restraining the recovery by the Tribunal and 4th and 5th respondents in the petition viz., the present petitioner and Recovery Officer, Coimbatore, from disturbing their peaceful possession and enjoyment of the mentally ill and physically handicapped Murugavel and to stay all further proceedings initiated by the Recovery officer of the Debt Recovery Tribunal, Coimbatore.
5. The said Kalyani also filed an application in I.A.No.20 of 2009 under
Section 65 of the Mental Health Act, 1987, praying the Court to stay all further proceedings in evicting the petitioner mentally ill and physically handicapped Murugavel from the schedule mentioned house till the disposal of the M.H.O.P. The learned District Judge, Namakkal has granted an ex-parte stay order, of course with the reasons in favour of the petitioners therein, against the recovery officer and this petitioner. This petitioner had purchased the property in auction sale on 29.08.2008. The said stay order is challenged before this Court.
6. Learned counsel for the petitioner Ms.P.T. Asha would contend that inasmuch as Kalyani had been facing and engaging herself in the litigations for over 12 years she is precluded from filing this application as she has not projected the identical circumstance viz., mental illness of Murugavel in the recovery proceedings and it is too late for her to come forward with the M.H.O.P. which is only to stall the further proceedings and prevent the petitioner from enjoying the fruit of court auction sale.
7. Per contra, Mr. R. Subramanian, learned counsel for the first respondent would state that the Court below only on appreciation of medical certificate issued by the doctor has satisfied itself and then granted stay.
8. Along with the M.H.O.P., a medical certificate was produced, issued by Dr. T.V.S. Velayutham, a Psychiatrist on 21.3.2009. The following are the contents of the said Certificate.
"MEDICAL CERTIFICATE This is to certify that Mr. V. Murugavel Son of Mr. R.A. Vairam, residing at 5, Appavu Mudaliar Lane, Pavadi Street, Tiruchengode, aged 29 years is undergoing care since childhood. He needs one persons assistance always for personal hygiene and other day to day activities. He is always bedridden and will not talk normally. He used to pass urine and motion in the bed itself. He was diagnosed as severe mental retardation. He is getting T. Nitrorot 10 mg. at night for control of violence for past 3 years."
9. Assailing the above said medical certificate, learned counsel for the petitioner would draw attention of this Court to the definition of a "mentally ill person", in
Section 2(l) of the Mental Health Act, 1987 (hereinafter referred to as "Act") which provides that "mentally ill person" means a person who is in need of treatment by reason of any mental disorder other than mental retardation." In the medical certificate, it is stated that the individual was diagnosed as severe mental retardation. Hence, it is the contention of the learned counsel that the first respondent could not be brought under the definition as contemplated under
Section 2(l) of the Act and in this regard the District Judge should have borne in mind that he is not a mentally ill person as defined in the Act and should not have granted stay order.
10. While the statute defines a mentally ill person as a person suffering from mental disorder other than mental retardation, it is incumbent upon the Court to examine the aspect first and then to proceed. It is also contended that before taking the petition to file, the court should have examined the doctor who has issued medical certificate and after proof of such certificate only it should have been numbered.
Section 50 of the Act deals with filing of application for judicial inquisition which enumerates the procedure to be adopted by the Court for such inquisition.
11. It is also stated that Kalyani had been consciously defending the recovery proceedings for a long time and she has not made the identical prayer before the Court at any point of time and only when the attachment and subsequent proceedings are being taken, she has come forward with the M.H.O.P. with mala fide intention. The daughters of Kalyani by name Lalitha and Kavitha and she as next friend to her son Murugavel, filed the Suit in O.S.No.560 of 2008 arraying her husband R.A. Vairam, Branch Manager, Indian Overseas Bank and the present petitioner as defendants for a prayer of partition for allotting 3/4th share to them. They also filed an application in I.A.No.501 of 2008 in the suit under Order 39 Rule 1 & 2 of C.P.C., praying for temporary injunction restraining the defendants from in any manner disturbing the petitioners' peaceful possession and enjoyment under the guise of enforcing any order of sale and consequent delivery of vacant possession of the suit property. It is also contended that since the said Kalyani could not get any interim order in the above said petition, she had come forward with the M.H.O.P. and prayed for a similar relief, which is not sustainable and that it is nothing but a "forum shopping".
12. Learned counsel for the petitioner also cites a decision rendered by this Court in 1997 (2) CTC 567 [Renuka Devi v. Manoharan] wherein it is stated that if a person is coming to court with a false case with aid of false and fraudulent document, such case should be thrown out at the threshold and that the Court has power to grant relief and should not close its eyes on technicalities. The arguments advanced on behalf of the petitioner has considerable force.
13. Learned counsel for the first respondent would submit that had the petitioner got grievance at the order passed by the Court below, he should have preferred an appeal and bye-passing the appeal remedy he should not have come to this Court under
Article 227 and the present petition cannot be sustained.
14. The Apex Court in (2000) 7 SCC 695 [A. Venkatasubbiah Naidu v. S. Chellappan and others] has held that though no hurdle can be put against the exercise of the constitutional powers of High Court it is a well-recognised principle which gained judicial recognition that the High Court direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy.
15. A Three Judges Bench of the Apex Court in (1979) 3 SCC 118 [Chandrasekar Singh and Others v. Siya Ram Singh and Others] observed that the scope of interference by the High Court under
Article 227 is restricted which has to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors and in a decision in (1975) 1 SCC 866 [Babhutmal Raichand Oswal v. Laxmibai R. Tarta] this Court reiterated a view stated in the earlier decisions referred to and held that the power of superintendence under
Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior can do in exercise of its statutory power as the court of appeal and that the High Court cannot in exercise of its jurisdiction under
Article 227 convert itself into a court of appeal.
16. An identical view has been expressed in the subsequent decision of the Supreme Court in (2003) 6 SCC 641 [State v. Navjot Sandhu] and in (2003) 6 SCC 675 [Surya Dev Rai v. Ram Chander Rai]
17. There is no serious error nor injustice appeared in the order challenged, so as to warrant the exercise of the jurisdiction of this Court under
Article 227 in this case.
18. In the light of what are stated above, this Court is of the considered opinion that the stay order passed by the Court below is not sustainable which has to be set aside, in view of the other circumstances prevailing in this case and it is accordingly set aside.
In fine, the Civil Revision Petition is allowed. No costs. Connected M.P. is closed.
ggs To Principal District Judge, Namakkal