TMI Blog2006 (7) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... 5636 of 2004 has knocked down the property for a sum of ₹ 15.08 crores. The said auction purchaser deposited 25 per cent of the amount on the date of sale on August 30, 2004, and the balance amount of ₹ 11.31 crores on September 30, 2004, as per the terms of the sale notice. While that being so, on September 7, 2004, writ petition in W.P. No. 25635 of 2004, was filed by Times Guarantee Limited seeking for the relief of writ of mandamus forbearing the second respondent-the Recovery Officer, Debts Recovery Tribunal-I, Chennai, from proceeding against the properties set out in the auction sale notice in D.R.C. No. 79 of 2002, by arraying the Industrial Development Bank of India, the Recovery Officer, Debts Recovery Tribunal-I, Chennai, and the official liquidator representing Rajalakshmi Mills Limited as respondents Nos. 1 to 3 respectively, on the premise that they are the unsecured creditors in a sum of ₹ 50 lakhs by way of discounting of bills of exchange and the debtor Rajalakshmi Mills failed to honour the bills. In spite of repeated promises, the company Rajalakshmi Mills was unable to pay the amount. Thus, the writ petitioner Times Guarantee Limited filed a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shmi Mills High School filed another writ petition in W.P. No. 27208 of 2004, by arraying the Recovery Officer, Debts Recovery Tribunal-I, Chennai, Industrial Development Bank of India, Coimbatore, the Director of School Education, Chennai, the District Educational Officer, Gopalapuram, Rajalakshmi Mills Limited and the auction purchaser Ramajeyam as respondents seeking for the relief of writ of declaration declaring the public auction held in D.R.C. No. 79 of 2002, on August 30, 2004, by the second respondent therein the Recovery Officer in respect of the land measuring 3.35 acres in S. No. 564/3, 566/1, 566/2, Uppilipalayam village, Coimbatore Taluk and District and bearing door No. 652/1, Trichy Road, Singanallur, Coimbatore-5 and the school buildings and play ground thereon is illegal and arbitrary and in violation of Section 31 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, and consequently cancel the sale of the above asset in favour of the sixth respondent on the premise that the fifth respondent debtor, Rajalakshmi Mills passed a resolution to hand over the building and play ground along with 3.35 acres for the purpose of running of the school and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, great prejudice has been caused to the auction purchaser from getting the auction confirmed in his name in spite of the fact the entire amount as required in a sum of ₹ 15.08 crores has been paid by him. This sort of filing writ petition and causing hardship to the third party and withdrawing the writ petition for extraneous reason at the time of disposal cannot be allowed. 8. I heard learned counsel. The point on which the writ petition was filed by the unsecured creditor, who filed company petition and thereupon taking the matter to the Division Bench in O.S.A. and getting the order of winding up setting aside on the false promise that the amount would be paid and thereby getting time and even thereafter failed to perform the promise and thereafter the order of the company court was got to be revived cannot be appreciated. Even on the merits, the entire issue as to (1) Whether in respect of proceedings under the RDB Act at the stage of adjudication for the money due to the banks or financial institutions and at the stage of execution for recovery of monies under the RDB Act, the Tribunal and the Recovery Officers are conferred exclusive jurisdiction in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riding effect to the provisions of the LIC Act. Still this Court upheld the exclusive jurisdiction of the LIC Tribunal observing as follows (page 763): 'the provisions of the Special Act, i.e., the LIC Act will override the provisions of the general Act, the Companies Act which is an Act relating to Companies in general.' We are of the view that the appellant's case under the RDB Act-- with an additional Section like Section 34--is on a stronger footing for holding that leave of the company court is not necessary under Section 537 or under Section 446 for the same reasons. If the jurisdiction of the Tribunal is exclusive, the company court cannot also use its powers under Section 442 against the Tribunal/Recovery Officer. Thus, Sections 442, 446 and 537 cannot be applied against the Tribunal. 10. In the proceedings before the Debts Recovery Tribunal-I, Chennai, the company in liquidation was represented by the official liquidator and even in the proceedings before the Recovery Officer, the official liquidator was a party. Therefore, the writ petition cannot be sustainable. Useful reference can be had to the judgment of the Supreme Court in the case of Rajasthan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 10 clearly states that the debtor Rajalakshmi Mills Private Limited, Trichy Road, Singanallur, Coimbatore, is the owner of the property in which the school is running. So, the secretary of the school committee cannot claim that the property is the private property of the school itself, so as to attract Section 31 of the Private Schools Regulation Act. 15. Yet another obstacle is also there against the petitioner school, which cannot be get over by them easily. The parent-teacher association of the same school had filed a pro bono publico by way of writ petition in W.P. No. 24486 of 2004, before the Division Bench of this Court seeking for the very same relief by raising the very same ground of violation of Section 31 of the Tamil Nadu Recognised Private Schools (Regulation) Act as ground No. (c) in the said writ petition. In order to have a clarity, the prayer in the pro bono publico is extracted here, which reads as follows: For the reasons stated in the accompanying affidavit, it is prayed that this hon'ble court may be pleased to issue a writ of mandamus or any other writ or direction in the nature of writ forbearing respondents Nos. 1 and 2 herein from in any mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l authorities on September 25, 2004. 19. The abovesaid averments are recorded and the undertaking given by the auction purchaser would take care of the interest of the students and staff working in the school. With this observation, W.P. No. 27208 of 2004, has to be dismissed. 20. The affidavit filed by K.P. Natarajan, the petitioner in W.P. No. 35296 of 2004, is not so happily worded. However, from paragraphs Nos. 2 to 5, it could be discerned that the petitioner claimed ownership over the property at Nos. 12-A, 25 and 26, Kalliamadai Road, Singanallur, Coimbatore, in S. No. 494/2 in Uppilipalayam village from 1960 onwards, that he was conferred title by settlement deed dated March 16, 1979, registered as document No. 609 of 1979, in sub-registrar's office, Singanallur and the settlement deed dated April 1, 1981, registered as document No. 582/81 in the sub-registrar's office, Singanallur. The third respondent--auction purchaser claimed that he is the owner of the property being the purchaser of the same in the auction sale conducted by the Recovery Officer of the Debts Recovery Tribunal-I, Chennai. 21. I am afraid whether a writ petition can be maintained by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 13, 2004, within the time granted to him. Thereafter, spate of writ petitions as stated above were filed and interim orders of stay/injunction were granted on September 9, 2004, September 24, 2004, and December 2, 2004, by this Court from confirming the sale in favour of the auction purchaser. Thereupon the auction purchaser withdrawn the amount except 10 per cent of the bid amount with the permission of the bank on the promise that he would repay the entire amount within 7 days on the conclusion of these writ petitions. Hence, he cannot be faulted for the same. 24. The order of the court should not prejudice the interest of the parties. The well established maxim of law is that actus curiae neminem gravabit . As stated above, the auction purchaser was a successful bidder for a sum of ₹ 15.08 crores and he paid the entire amount as per the sale notification. Because of the litigation, he was allowed to withdraw a major portion of the amount on condition that he should repay within 7 days on conclusion of the writ proceedings. Now, it is for the auction purchasers to comply with the undertaking and if the undertaking is so complied with, it is open to the Recovery Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
