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TMI Blog2018 (9) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel for the 8th respondent in CRP. No. 535/2017 and Mrs. VPM. Vaishnavi, learned Government Advocate for the respondents 9 to 12 in CRP. No. 535/2017 and perused the entire materials available on record. No representation on behalf of the 4th respondent. 2. Both the C. R. P. (NPD)(MD). No. 2322 of 2008 and C. R. P. (PD) (MD). No. 535 of 2017, arise out of the same subject matter and hence it is taken up together for joint disposal. 3. The challenge in the Civil Revision Petition in C. R. P. (NPD). (MD). No. 2332 of 2008 is to the order passed by the learned Principal District Judge, Dindigul in I. A. No. 83 of 2008 in O. S. No. 33 of 2004 dated 20. 11. 2008. The challenge in the Civil Revision Petition in C. R. P. (MD). No. 535 of 2017 is to the order passed by the learned Principal District Munsif Court, Dindigul in I. A. No. 797 of 2014 in O. S. No. 593 of 2014 dated 02. 12. 2016. 4. Now, the only issue that arises to be considered is whether the Petitioner in C. R. P. (MD). No. 2332 of 2008 is entitled for the relief sought for and whether the action of the Respondent bank is sustainable in Law. Further the issue to be considered is whether the Petitioner in C. R. P. (M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33 of 2004 and the suit was in the final stages and nearing completion he would be able to redeem his property by depositing the Decreetal amount if the Civil Court were to decree the suit in favour of the bank. The conduct of the bank in not informing the Civil Court about any intended sale raises suspicion about the bonafides of the bank. The bank as a public sector institution should be a model money lender and its intention should only be to realize the debt amount and not sell the property of the borrower. 6. The suit in O. S. No. 33 of 2004 had come up for final disposal before the Trial Court on 20. 03. 2008 and the Trial Court had passed a Decree and Judgment on 26. 03. 2008. The Trial Court had in its Judgment dated 26. 03. 2008 had allowed the claim of the bank as far as the OCC Loan account was concerned and negatived the relief against the bank as regards the MTL/Vehicle loan. Therefore the claim of the bank as against the Revision Petitioner herein was only partially Decreed. Only upon passing of the said Decree, the actual liability as against the Petitioner was ascertained and crystallized. The Trial Court had given two months time from the date of Decree for the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A. No. 83 of 2008 dated 01. 07. 2008 stating for the first time before the Trial Court that recovery proceedings under the SARFAESI Act had been taken and on 03. 03. 2008 the mortgage property has been sold to a third party and such auction purchaser has also deposited the entire auction sale consideration and his auction sale was confirmed and sale certificate has been issued. The Respondent bank had not disclosed these facts before the Civil Court during the pendency of the civil suit. The surreptitious manner in which the bank has proceeded is also evident from the fact that when it had filed the counter affidavit in I. A. No. 83 of 2008 on 01. 03. 2008 it has rushed to execute the sale deed in favour of the auction purchaser on 14. 07. 2008. The respondent bank has not taken any permission from the Trial Court for either executing the sale certificate or sale deed. Even in the counter affidavit filed in I. A. No. 83 of 2008, the Respondent bank has not disclosed the name of the auction purchaser and the other material particulars relating to the auction sale stated to have been conducted. All these conduct go to prove that the bank has not acted in a fair manner and seems to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n purchaser could take physical possession of the property as till date the property tax and electricity receipts stands in the name of the Revision Petitioners in C. R. P. (NPD). (MD). No. 2332 of 2008 and also in view of the suit in O. S. No. 593 of 2014 pending on the file of the District Munsif Court, Dindigul. Therefore the dismissal of the writ petition in W. P. (MD). No. 5967 of 2011 will not have any material bearing upon the contentions in the present Civil Revision Petition. 10. The Respondent bank even though on the one hand claimed that it had invoked the SARFAESI Act and proceeded to sell the property, on the other hand it had kept prosecuting the suit in O. S. No. 33 of 2004 continuously and thereby kept the borrower under a confused state. The Respondent bank has pursued parallel and inconsistent remedies and simply tried to outwit the borrower and somehow bring the property for sale. The intention of the bank is clearly not realization of debt but to bring the property of the borrower for sale by continuously dodging and misleading the borrower before different Forums under different proceedings. Had the bank stopped with the proceedings in O. S. No. 33 of 2004 aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter by Final Decree proceedings or execution proceedings. Whereas Section 13(2) of the SARFAESI Act deals with liquidation of liability which is enforcement of security interest. Therefore before passing of a Decree by a competent civil Court, the proceedings before the civil Court are not complementary to a proceeding under Section 13(2) of the SARFAESI Act. On the other hand the proceedings before the civil Court and the proceedings under the SARFAESI Act are contradictory and inherently inconsistent between each other. 12. The SARFAESI Act proceedings proceed on the basis that the borrower is already under a liability. On the other hand the question whether the borrower is under a liability and if at all to what extent will be finalized by the civil Court only after passing of the Decree. At least till that stage is reached since the proceedings under the SARFAESI Act and the Civil Court proceedings are inconsistent, the bank cannot pursue both the remedies simultaneously. In such circumstance the principles of doctrine of election can also be invoked and the bank should have elected either of the two remedies and ought not to have simultaneously proceed under both the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of the civil suit will not prevent this Court and restrict the inherent jurisdiction of this Court under Article 227 of the Constitution of India to render justice in the facts of the case. The bank having invoked the inconsistent and parallel remedies and having continued to do the same till date is not entitled for any equitable relief. 14. In fact the civil Revision Petitioner who had all along shown his bonafides by complying with the directions for deposit of amount as directed by this Court time and again has made out a case for exercise of the discretion under Article 227 of Constitution of India by this Court. In fact as early as 2007 i. e. , before even the conclusion of the trial, the borrower has deposited a substantial portion of the debt. The bank had not taken any earnest step to settle the dispute by receiving the debt amount especially when the debtor had come forward to deposit the decreetal amount. The bank has even now not furnished any particulars pertaining to the alleged sale said to have been conducted by it. The bank has not filed any documents for this Court to at least have a glance to satisfy itself as to whether the bank followed at least rudimentary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlocutory Application in I. A. No. 797 of 2014 in O. S. No. 593 of 2014 under Order VII Rule 11(d) of the Code of Civil Procedure for rejection of the plaint. The learned District Munsif, Dindigul had passed a Fair and Executable Order on 02. 12. 2016 dismissing the I. A. No. 797 of 2014 filed by the Revision Petitioner/ Creditor Bank. The Trial Court had held that the suit is maintainable even though the bank has invoked the SARFAESI Act and it has also held that the issues regarding whether the Plaintiffs are the tenants and whether the tenancy deeds are valid and genuine can be decided during the trial. The Revision Petitioner/ Creditor Bank have vehemently contented that the civil Court has no jurisdiction to decide the suit. 16. The Trial Court has rightly concluded that the suit is maintainable and the other aspects regarding the tenancy can be decided in the trial of the suit. The Hon'ble Apex Court in Vishal N. Kalsaria Vs. Bank of India & others reported in (2016)3 SCC 762 has held that neither the landlord nor the bank can be permitted to exploit the fact of non-registration of tenancy deed against the tenants. The Hon'ble Apex Court in Paragraph 37 of the above said Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odian of constitutional rights is entitled to examine the matter. The violation and deliberate pursuing of inconsistent remedies especially when the debtor had came forward to honour the Civil Court Decree immediately go to the very root of the matter and therefore no protection or immunity could be claimed by any person including the so called auction purchasers. The auction purchasers of course have purchased the suit property in the auction during the pendency of the civil suit with "as is where is condition". When it is known to the auction purchaser that there is a civil suit and the proceedings are being continued in C. R. P. (NPD). (MD). No. 2332 of 2008 and also in A. S. (MD). No. 217 of 2009, they cannot claim any protection beyond the outcome of the said proceedings by this Court. The alleged sale in favour of the auction purchasers should vanish at once when the entire proceedings resulting in an auction sale is found to be vitiated on so many grounds. 19. For the reasons assigned above, this Court is of the view that the impugned order passed by the learned Principal District Judge, Dindigul in I. A. No. 83 of 2008 in O. S. No. 33 of 2004 dated 20. 11. 2008 is liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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