ASSET RECONSTRUCTION COMPANY (INDIA) LTD Vs. V.CHOLA

JUDGEMENT

(1.) This Civil Revision Petition has been filed by the petitioner challenging the judgment and decree dtd. 28/6/2017 passed by the Principal District Court, Theni, in O.S.No.55 of 2006.

(2.) The learned senior counsel for the petitioner / 3rd party submitted that the third and fourth respondents, who started a partnership firm by name M/s.Puppy's Grand Swim and Slim, had availed loan from the 5th respondent Bank during the year 2003, for which they mortgaged two prime properties at Veerapandi Village, Palanichettipatti, Theni District. After availing the said loan, the third and fourth respondents failed to repay the loan amount. Hence, the 5th respondent Bank declared the above loan as a Non Performing Asset (NPA) and initiated the SARFAESI Act proceedings during the year 2006. In order to delay the said proceedings, the first and second respondents, who are the son and daughters of the third and fourth respondents, had filed a suit in O.S.No.55 of 2006 for partition in respect of the property mortgaged with the Bank by adding the Bank also as one of the defendants. As there was no interim order granted, the 3rd respondent herein had filed a Writ Petition before this Court and this Court had granted an interim order subject to deposit of 25% of the amount due to the bank. On the very same day, without any jurisdiction, the first and second respondents had filed another suit in O.S.No.3 of 2007 on the file of the Subordinate Court, Madurai, seeking permanent injunction from bringing the properties for auction and obtained an interim order. Then, the 3rd respondent purposefully withdraw the said writ petition. During the pendency of the said suits, the Bank assigned the mortgaged properties in favour of the petitioner company on 31/3/2011. As per the said agreement, the petitioner company has become absolute owner of the said property. Having coming to know about the same, the third and fourth respondents approached the petitioner company and sent a proposal for OTS on 29/8/2016 and the same was also accepted by the petitioner company on 12/9/2016. However, they failed to honour the OTS proposal. In the said circumstances, the petitioner company once again initiated the proceedings under SARFAESI Act.

(3.) The learned senior counsel for the petitioner company would further submit that while so, on 17/3/2017, the suit in O.S.No.3 of 2007 was dismissed by the Court below on the ground of lack of jurisdiction and suppression of filing of the suit in O.S.No.55 of 2006 for partition. Thereafter, the respondents 1 to 4 in collusion with each other have filed a joint memo in O.S.No.55 of 2006 contending that the third and fourth respondents herein / defendants 1 and 2 have no objection in allotting 2/3rd share in favour of the respondents 1 and 2/ plaintiffs in the suit. In collusion with the respondents 1 to 4, the 5 th respondent / Bank also, without any authority, filed a memo on 21/6/2017 stating that since the value of the schedule properties have increased substantially, 1/3rd property value is sufficient to settle the loan due to the Bank. Based on the said memos, the Court below has decreed the suit in O.S.No.55 of 2007 on 28/6/2017. Aggrieved by the same, the petitioner company has come up with this revision petition.