THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE Tmt.JUSTICE V.BHAVANI SUBBAROYAN W.P.No.6890 of 2017 and W.M.P.No.7480 of 2017 R.Elango .. Petitioner vs
1. The Presiding Officer, Debts Recovery Tribunal, 1670, Trichy Road, Ramanathapuram, Coimbatore - 641 045
2. The Recovery Officer-I, Office of the Recovery Officer Debts Recovery Tribunal, 1670, Trichy Road, Ramanathapuram, Coimbatore - 641 045
3. The Authorised Officer Bank of India Kurichi SMR Branch Coimbatore - 641 024 .. Respondents Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus directing the 1st respondent herein to consider the petitioner representation dated 21.02.2017 against the notice for drawing proclamation of sale and order of attachment of immovable property dated 07.02.2017 and pass http://www.judis.nic.insuitable orders accordingly.
For Petitioner : Mr.B.Karthikeyan For Respondent - 3 : Mr.Jayarama Raja for F.B.Benjamin George O R D E R (Made by S.MANIKUMAR, J.) Match Winners Tex Private Ltd., Tirupur, has borrowed money from Bank of India, Coimbatore. Petitioner has stood as guarantor for Rs.1,20,00,000/-. As the borrower did not repay, bank initiated proceedings in O.A. No.187/2005, for recovery of a sum of Rs.4,83,71,791/-. Debts Recovery Tribunal, Coimbatore, passed an order on 05.07.2007 and subsequently an amended order dated 11.09.2009 was issued. Corrigendum was also issued on 22.12.2009 to the effect that a sum of Rs.4,83,71,791/- was due, as on 30.04.2011. Accordingly, Recovery Certificate was issued against M/s.Match Winners Tex Pvt. Ltd. represented by its Director Mr.Rayappan @ Duraisamy and three others. R.Elango, writ petitioner, has been shown as one of the Directors of M/s.Match Winners Tex Pvt. Ltd., Perundurai.
2. Consequent to the Recovery Certificate, Recovery Officer, Debts Recovery Tribunal, Coimbatore, in recovery proceedings in R.P. No.05/2011 in DRC No.4/2011 in O.A. http://www.judis.nic.inNo.187/2005, dated 07.02.2017, passed an order of attachment of immovable property, which is extracted here under:
" ORDER OF ATTACHMENT OF IMMOVABLE PROPERTY
Whereas you the defendants have failed to pay the sum of Rs.4,83,71,791.00 (Rupees Four Crores Eighty Three Lakhs Seventy One Thousand Seven Hundred Ninety One only), payable by you, to the applicant in terms of Debs Recovery Certificate No.04/2011 of dated 24.05.2011 issued in O.A. No.187/2005 drawn up by the Hon'ble Presiding Officer, Debts Recovery Tribunal, Coimbatore, and further interest from 01.05.2011 and costs payable as per law.
It is hereby ordered that you, the said defendants, be and you are hereby prohibited and restrained, until further order of the undersigned, from transferring and charging the under-mentioned property in any way and that all persons be, and that they are prohibited from taking any benefit under such transfer of charge.
Also note that unless the money is paid forthwith the under-mentioned properties will be sold by public auction and the money will be realised without any further notice or intimation.
SCHEDULE OF PROPERTIES SCHEDULE 'C'
PROPERTY BELONGING TO SRI R.ILANGO (D3):
a. In Periyar Registration District, Uthukuli Sub Registration District, Perundurai Taluk, Nadupatti Village, in Old G.S. No.208, 209 - New Resurvey S.F. No.36/2, Punj. Hectare 2.02.5 with Assessment Rs.5.61 (Punj Ac. 5.00) within the following boundaries: West of properties in G.S. No.48 - N.S. Uthukuli Road Margin, North of properties in G.S. No.35 - E.W. Road leading to Nadupatti, East of Punjai lands in G.S. No.36/1 and 38/2, South of punjai lands in G.S. No.37, an extent of punjai Hectates 2.02.5 of Punjai Ac.5.00 lying within these boundaries with all the appurtenances and right of way in all the tracks. The property is situated within Uthukuli Panchayat and Nadupatti Village limits.
b. In Periyar Registration District, Uthukuli Sub Registration District, Perundurai Taluk, Nadupatti Village, in Old G.S. No.208, 209 - New Resurvey S.F. No.36/1, Punj. Hectate 1.95.0 with assessment Rs.5.40 (Punj Ac.4.82) within the following boundaries. West of Punjai lands in G.S. No.36/2, North of properties in G.S. No.345 - E.W. Road leading to Nadupatti, East of Punjai lands in G.S. No.21, South of Punjai lands in G.S. No.38/3, an extent of punjai Hectares .95.0 or Punjai Ac.4.82 lying within these boundaries with all the appurtenances and right of way in all the tracks. The property is situated within Uthukuli Panchayat and Nadupatti village limits.
c. In Periyar Registration District, Uthukuli Sub Registration District, Perundurai Taluk, Nadupatti village, in Old G.S. No.208, 209 - New Resurvey S.F.
No.38/3, Punj. Hectate 1.80.0 with Assessment Rs.4.99 (Punj Ac 4.45) within the following boundaries: West of punjai lands in G.S. No.36/2 & 37, North of punjai lands in G.S. No.36/1, East of punjai lands in G.S. No.21, South of Punjai lands in G.S. No.38/2. An extent of punjai Hectares 1.80.0 or punjai Ac.4.45 lying within these boundaries with all the appurtenances and right of way in all the tracks. The property is situated within Uthukuli Panchayat and Nadupatti village limits.
d. In Tiruppur Registration District, Palladam Sub Registration District, Tiruppur Taluk, attached to Pongalur Union within Madapur Panchayat Board limits in Madapur Village in G.S. No.598 an extent of Punj. Ac. 6.95 with assessment Rs.11.75, G.S. No.599 an extent of Punj. Ac 7.05 with assessment Rs.11.87, G.S. No.600 an extent of Punj. Ac. 7.69 with assessment Rs.13.00 an well in G.S. Nos.599 & 600, G.S. No.601 an extent of Punj. Ac. 6.00 with assessment Rs.10.25. Totally, in all the 4 G.S. Nos. an extent of Ac.27.78 with accessment Rs.46.87 with all appurtenances and right of way."
3. In the same Recovery Proceedings (R.P.) No.05/2011, Recovery Officer has issued a notice for drawing up proclamation sale, setting out the terms thereof, and the schedule mentioned properties mentioned, in the order of attachment. Coming to know of the order of attachment, and proclamation sale, writ petitioner, has sent a representation dated 21.02.2017, to the Recovery Officer, Coimbatore contending inter alia that the signatures of the writ petitioner has been forged, in collusion with the borrower, and that a case in Crime No.21/2005 has been registered on the file of City Crime Branch, Tiruppur, where Mr.Rayappan @ Duraisamy and Mrs.Uma Rayappan, Directors of M/s.Match Winners Tex Private Ltd., Tiruppur, have been arraigned as accused.
4. Contention has also been made before the Recovery Officer that the petitioner has sent a letter dated 08.01.2014 to the Director of Vigilance and Anti-Corruption, Banking Department, Ministry of Finance, New Delhi, alleging fraudulent activities of the bank officials. Writ petitioner, in his representation dated 21.02.2017, has requested the Recovery Officer, to consider the above, and to stop all further recovery proceedings (R.P) No.05/2011.
5. Authorised Officer, Bank of India, Coimbatore Zone, seemed to have filed a counter affidavit to the representation dated 21.02.2017.
6. According to the petitioner, representation dated 21.02.2017 addressed to the Recovery Officer has not been considered. Contending inter alia that there is no other alternative and efficacious remedy, instant writ petition has been filed for a mandamus directing the Presiding Officer, DRT, Coimbatore, first respondent herein, to consider the representation dated 21.02.2017.
7. During the course of hearing of this petition, Mr.B.Karthikeyan, learned counsel on record, submitted that though the very same contentions have been made before DRT, Coimbatore, and the same were not considered. Submission of the learned counsel is placed on record.
8. Admittedly, bank has instituted proceedings in O.A. No.187/2005 for recovery of Rs.4,83,71,191/- against (1) M/s.Match Winners Tex Pvt. Ltd. represented by its Directors N.Rayappan, (2) N.Rayappan alias Duraisamy, Director of M/s.Match Winner Tex Private Ltd., (3) R.Ilango, Director, M/s.Match Winner Tex. Private Ltd., and (4) Uma Rayappan, w/o.N.Ryappan. Recovery Certificate has been issued in O.A.
No.187/2005 and that there was an amendment in corrigendum. Recovery is for Rs.4,83,71,791/-, as on 30.04.2011 from the above defendants therein.
9. Material on record does not disclose that being aggrieved by the final order in O.A.No.187/2005 dated 05.07.2007 amended final order dated 11.09.2009 and corrigendum dated 22.12.2009, the defendants therein, have filed any appeal to the Debts Recovery Appellate Tribunal, Chennai. Pursuant to the Recovery Certificate issued, an order of attachment of immovable property mortgaged with the Bank of India has been made in Recovery Proceedings (R.P) No.05/2011, extracted supra. Thereafter, on the same day, 07.02.2017, notice for drawing proclamation of sale of the properties attached, has been issued informing that the proclamation would be made on 28.02.2017.
10. Section 30 of the Recovery of Debts Due to Bankruptcy Act, 1993, deals with appeal against the order of Recovery Officer, which reads thus:
"30. Appeal against the order of Recovery Officer.—(1) Notwithstanding anything contained in section 29, any person aggrieved by an order of http://www.judis.nic.in the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.
(2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under sections 25 to 28 (both inclusive).
11. Section 30-A speaks about the deposit of amount of debt due for filing appeal against the orders of the Recovery Officer, which reads thus:
"Where an appeal is preferred against any order of the Recovery Officer, under section 30, by any person from whom the amount of debt is due to a bank or financial institution or consortium of banks or financial institutions, such appeal shall not be entertained by the Tribunal unless such person has deposited with the Tribunal fifty per cent of the amount of debt due as determined by the Tribunal."
12. As stated supra, the writ petitioner has neither preferred an appeal against the order of the Debts Recovery http://www.judis.nic.in Tribunal, Coimbatore in O.A.No.187/2005 dated 05.07.2007 amended final order dated 11.09.2009 and corrigendum dated 22.12.2009, nor preferred an appeal against the Recovery Proceedings (R.P.) No.05/2011 in DRC No.4/2011 in O.A. No.187/2005, dated 07.02.2017. Petitioner has sent a representation dated 21.02.2017 to the Recovery Officer, to consider the facts pleaded before the Tribunal, which according to the writ petitioner, not taken note of, while passing final order. Since there was no response from the Recovery Officer, petitioner has sought for a Mandamus directing the 1st respondent herein to consider the representation dated 21.02.2017 sent against the notice for drawing proclamation of sale and order of attachment of immovable property dated 07.02.2017 and to pass suitable orders, accordingly.
13. Recovery officer, has no authority, to reconsider the facts placed before the Tribunal. Recovery of Debts Due to Bankruptcy Act, 1993 does not contemplate any representation to the Recovery Officer. Modes of the Recovery, as set out under Section 28 of Act, 1993 are as follows:
28. Other modes of recovery.—
(1) Where a certificate has been issued to the http://www.judis.nic.in Recovery Officer under sub-section (7) of section 19, the Recovery Officer may, without prejudice to the modes of recovery specified in section 25, recover the amount of debt by any one or more of the modes provided under this section.
(2) If any amount is due from any person to the defendant, the Recovery Officer may require such person to deduct from the said amount, the amount of debt due from the defendant under this Act and such person shall comply with any such requisition and shall pay the sum so deducted to the credit of the Recovery Officer:
Provided that nothing in this sub-section shall apply to any part of the amount exempt from attachment in execution of a decree of a civil court under section 60 of the Code of Civil Procedure, 1908 (5 of 1908).
(3) (i) The Recovery Officer may, at any time or from time to time, by notice in writing, require any person from whom money is due or may become due to the defendant or to any person who holds or may subsequently hold money for or on account of the defendant, to pay to the Recovery Officer either forthwith upon the money becoming due or being held or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount of debt due from the defendant or the whole of the money when it is equal to or less than that amount.
(ii) A notice under this sub-section may be issued to any person who holds or may subsequently hold any money for or on account of the defendant jointly with any other person and for the purposes of this subsection, the shares of the joint holders in such amount shall be presumed, until the contrary is proved, to be equal.
(iii) A copy of the notice shall be forwarded to the defendant at his last address known to the Recovery Officer and in the case of a joint account to all the joint holders at their last addresses known to the Recovery Officer.
(iv) Save as otherwise provided in this sub- section, every person to whom a notice is issued under the sub-section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, bank, financial institution, or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like to be made before the payment is made notwithstanding any rule, practice or requirement to the contrary.
(v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising after the date of the notice shall be void as against any demand contained in the notice.
(vi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or the part thereof is not due to the defendant or that he does not hold any money for or on account of the defendant, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Recovery 26 Officer to the extent of his own liability to the defendant on the date of the notice, or to the extent of the defendant’s liability for any sum due under this Act, whichever is less.
(vii) The Recovery Officer may, at any time or from time to time, amend or revoke any notice under this sub-section or extend the time for making any payment in pursuance of such notice.
(viii) The Recovery Officer shall grant a receipt for any amount paid in compliance with a notice issued under this sub-section, and the person so paying shall be fully discharged from his liability to the defendant to the extent of the amount so paid.
(ix) Any person discharging any liability to the defendant after the receipt of a notice under this sub-section shall be personally liable to the Recovery Officer to the extent of his own liability to the defendant so discharged or to the extent of the defendant’s liability for any debt due under this Act, whichever is less.
(x) If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Recovery Officer, he shall be deemed to be a defendant in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realization of the amount as if it were a debt due from him, in the manner provided in sections 25, 26 and 27 and the notice shall have the same effect as an attachment of a debt by the Recovery Officer in exercise of his powers under section 25.
(4) The Recovery Officer may apply to the court in whose custody there is money belonging to the defendant for payment to him of the entire amount of such money, or if it is more than the amount of debt due an amount sufficient to discharge the amount of debt so due.
[(4-A) The Recovery Officer may, by order, at any stage of the execution of the certificate of recovery, require any person, and in case of a company, any of its officers against whom or which the certificate of recovery is issued, to declare on affidavit the particulars of his or its assets.]
(5) The Recovery Officer may recover any amount of debt due from the defendant by distraint and sale of his movable property in the manner laid down in the Third Schedule to the Income-Tax Act, 1961 (43 of 1961).
http://www.judis.nic.inWhen the statute does not contemplate a representation to be considered, mandamus cannot be issued, to the Recovery Officer.
In the light of the above discussions, writ petition deserves to be dismissed and accordingly dismissed. However, there shall be no order as to cost. Consequently, the connected writ miscellaneous petition is closed.
Index: Yes/No. asr To The Registrar Debts Recovery Tribunal Coimbatore [S.M.K., J.] [V.B.S., J.] 12.09.2017 S. MANIKUMAR, J.
AND V.BHAVANI SUBBAROYAN, J.
asr W.P.No.6890 of 2017 and W.M.P. No.7480 of 2017
12.09.2017