IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
OP (DRT).No.2 OF 2021
PETITIONER/APPLICANT:
SIJO JOSEPH, AGED 42 YEARS
S/O. JOSEPH, PUTHUPPARA, KIDANGOOR P.O.,
ANGAMALY, THRISSUR-683 572.
BY ADV. SRI.V.K.PEERMOHAMED KHAN
RESPONDENTS:
1 THE SOUTH INDIAN BANK LTD
REPRESENTED BY ITS MANAGER, ANGAMALY NORTH BRANCH,
NEAR KSRTC BUS STAND, ANGAMALY, THRISSUR-683 572.
2 THE AUTHORISED OFFICER
SOUTH INDIAN BANK LTD., REGIONAL OFFICE, SIB
BUILDING, INFOPARK ROAD, RAJAGIRI VALLEY P.O.,
KAKKANAD, KOCHI-682 039.
SRI. SUNIL SHANKER - SC
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION
ON 08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (DRT).No.2 OF 2021
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JUDGMENT
Dated this the 8th day of January 2021 The petitioner has approached this Court impugning Exts.P5 to P7 on the allegation that the respondent - Bank is now putting the secured assets to sale on 08.01.2021.
2. However, the learned standing counsel for the respondent - Bank, Sri.Sunil Shankar, submitted that no bidders have responded to Ext.P7 sale notification and therefore, that the Bank intends to issue a fresh one in terms of law.
3. On hearing Sri.Sunil Shankar as afore, Sri.Peer Mohamed Khan, learned counsel for the petitioner, urged that the challenge of the petitioner against Ext.P5 interim order and Ext.P6 final order in S.A.No.78/2019, of the Debts Recovery Tribunal - II, Ernakulam, be entertained by this Court on its merits. He relied on the judgment of this Court in O.P.(DRT) No.73/2018 in support of his plea saying that since Ext.P6 final order in S.A is per se perverse and unsustainable, this Court can entertain a challenge against the same, even without his client having to approach the statutory Appellate OP (DRT).No.2 OF 2021 3 Tribunal. Sri.Peer Mohamed Khan fortified his submissions by saying that Ext.P6 final order has been issued by the DRT solely because the petitioner had not challenged Ext.P5 interim order, wherein, his client had sought for appointment of an Advocate Commissioner and therefore, that this Court will be justified in entertaining the challenge against Exts.P5 and P6 on its merits.
4. Even when I hear Sri.Peer Mohamed Khan on the afore lines, it is indubitable that in O.P.(DRT) No.73/2018, this Court had found the final order in the S.A issued by the DRT to be completely without legal basis and therefore, had invoked the well recognised principle in law that in such circumstances, an alternative remedy would not be a bar for this Court exercising its powers under Article 226 of the Constitution of India.
5. However, in the case at hand, it is clear that Ext.P5 order had been issued by the DRT on 18.10.2019 and that the petitioner had not challenged it until such time as Ext.P6 final order was issued on 05.11.2019. It may be true that the period between Exts. P5 and P6 orders was short but this by itself would not enable this Court to entertain a challenge on OP (DRT).No.2 OF 2021 4 the merits of the said orders under Article 226 of the Constitution of India.
I am consequently of the firm view that the petitioner must invoke his alternative remedy before the Debts Recovery Appellate Tribunal, Chennai, particularly because the threat of imminent sale of the secured assets, through Ext.P7, has now been averted.
This original petition is thus disposed of with the afore liberty being reserved to the petitioner.
Sd/- DEVAN RAMACHANDRAN
Stu JUDGE
OP (DRT).No.2 OF 2021
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPLICATION FILED BY THE
PETITIONER AS SA NO.78/2019 BEFORE THE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT BANK IN SA NO.78/2019 BEFORE THE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM. EXHIBIT P3 TRUE COPY OF PETITION IN IA NO.1280/2019 FILED BY THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT BANK IN IA NO.1280/2019. EXHIBIT P5 TRUE COPY OF THE ORDER IN IA NO.1280/2019 OF THE DRT-II, ERNAKULAM.
EXHIBIT P6 TRUE COPY OF THE FINAL ORDER OF THE DRT-II, ERNAKULAM IN SA NO.78/2019.
EXHIBIT P7 TRUE COPY OF THE SALE NOTICE ISSUED BY THE RESPONDENT BANK.