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Kerala High Court
Shine P Jacob vs The Debt Recovery Tribunal €“Ii ... on 20 May, 2024
Author: N. Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
OP (DRT) NO. 82 OF 2024
AGAINST THE ORDER DATED 09.02.2024 IN I.A.NO.156 OF 2024
IN SA NO.49 OF 2022 OF DEBT RECOVERY TRIBUNAL-2,
ERNAKULAM
PETITIONER/APPLICANT:
SHINE P JACOB
AGED 52 YEARS, S/O P.M JACOB,
POOVANNUMMOOTTIL HOUSE, T B JUNCTION,
PUNALUR P.O, KOLLAM, PIN - 691305.
BY ADVS.
ALEXANDER JOSEPH
AKHILASREE BHASKARAN
ANTONY NIKHIL REMELO
RESPONDENTS/TRIBUNAL AND DEFENDANTS:
1 THE DEBT RECOVERY TRIBUNAL -II, ERNAKULAM
REPRESENTED BY ITS REGISTRAR, KSHB ,
PANAMPILLY NAGAR, ERNAKULAM PIN - 682036.
2 THE AUTHORISED OFFICER/CHIEF MANAGER
THE SOUTH INDIAN BANK, REGIONAL OFFICE,
YWCA BUILDING, MG ROAD, STATUE,
THIRUVANATHAPURAM, PIN - 695014.
3 THE BRANCH MANAGER
THE SOUTH INDIAN BANK
PATHANAPURAM BRANCH, PATHANAPURAM,
KOLLAM DISTRICT PIN - 689695.
4 THE CHAIRMAN
THE SOUTH INDIAN BANK, HEAD OFFICE,
TRICHUR, PIN - 680001.
O.P.(DRT) No.82/2024
:2:
BY ADVS.
SRI.SUNIL SHANKAR A
SMT.VIDYA GANGADHARAN
SMT.SANDHRA.S
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(DRT) No.82/2024
:3:
N. NAGARESH, J.
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O.P.(DRT) No.82 of 2024
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Dated this the 20th day of May, 2024
JUDGMENT
~~~~~~~~~ IA No.156/2024 filed by the petitioner in SA No.49/2022 on the files of the Debts Recovery Tribunal-II, Ernakulam seeking to appoint an Advocate Commissioner and a qualified Structural Engineer to conduct local investigation of the property described in Annexure-A4 possession notice and Annexure-A11 sale notice, stands dismissed as per Ext.P10 order dated 09.02.2024 of the Tribunal. The petitioner is aggrieved by Ext.P10.
2. The petitioner, who was doing business in sale of used cars, availed financial assistance from the 3 rd respondent. Due to the Covid-19 pandemic, the business of the petitioner collapsed. The Bank initiated recovery O.P.(DRT) No.82/2024 :4: proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Ext.P1 possession notice was issued on 24.01.2022.
3. The petitioner filed SA No.49/2022 challenging the possession notice. The Advocate Commissioner appointed under Section 14 took possession of the property on 17.08.2023. According to the petitioner, 5.20 Ares of property consisted of a five storied building in the heart of Punalur town, by the side of Kallada river.
4. The petitioner submits that consequent to rain water and torrential rains, the retaining wall of the building by the side of Kallada river was destroyed. The Bank did not take any interest to protect the property. The structural strength of the building weakened. Cracks in the foundation structure of the building are visible.
5. The petitioner issued Ext.P3 lawyer notice dated 22.11.2023 requiring to protect and take steps to maintain the property. The Debts Recovery Tribunal passed Ext.P4 order dated 21.12.2023 in IA No.3888/2023. The petitioner O.P.(DRT) No.82/2024 :5: filed appeal before the Debts Recovery Appellate Tribunal challenging sale notice. As there were no bidders, sale did not materialise and the appeal filed by the petitioner was rendered infructuous.
6. The 2nd respondent issued notice dated 30.12.2023 notifying auction sale afresh. The petitioner filed IA No.155/2024 for amending the SA challenging the fresh auction sale notice. The petitioner also filed IA No.156/2024 seeking to appoint Advocate Commissioner and Structural Engineer to conduct local investigation. The Tribunal dismissed the application for appointment of Advocate Commissioner as per Ext.P10 order dated 09.02.2024.
7. The petitioner submits that the respondents are bound to protect the property in view of Rule 8(3) of the Security Interest (Enforcement) Rules, 2002. It is necessary to ascertain structural strength of the building before selling the property. Ext.P10 order rejecting the commission application is illegal. Ext.P10 amounts shutting out the best evidence. Hence, the petitioner seeks to set aside Ext.P10 O.P.(DRT) No.82/2024 :6: order and to direct the Tribunal to depute Advocate Commissioner and Structural Engineer for inspection of the property.
8. Respondents 2 and 3 resisted the OP(DRT) filing counter affidavit. The respondents submitted that the averment that they did not take step to protect the property from flood, is without any merit. The petitioner had inducted a third party into the property without the knowledge of the Bank. The said party has modified the property and was running a restaurant in the property. The third party, at the time of eviction, removed the interior works done. The OP(DRT) is without any merit, contended the respondents.
9. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing respondents 2 and 3.
10. The allegation of the petitioner is that 5.20 Ares of land mortgaged by him has a five storied commercial building. After taking over of the property by the Bank, the retaining wall of the building washed away. The building is O.P.(DRT) No.82/2024 :7: now under the threat of collapse. Therefore, the petitioner filed application for appointment of Advocate Commissioner and Structural Engineer.
11. After considering the facts of the case, the Debts Recovery Tribunal has rejected the application. The Tribunal found that similar question was raised by the applicant while considering IA No.3888/2023. The Tribunal found in the said IA that the physical possession of the secured asset was taken on 17.08.2023. The petitioner did not raise such contention earlier. It was after issuance of sale notice that the petitioner has issued a lawyer notice raising the issue. Maintenance of retaining wall of the building has no connection with the sale.
12. As the Tribunal has already come to a conclusion in this regard, it was held that the issue has attained finality which is not challenged by the petitioner in any forum. The Tribunal found that appointment of Advocate Commissioner and Structural Engineer is not necessary before putting the property for sale and for adjudicating the Securitisation O.P.(DRT) No.82/2024 :8: Application.
13. Going through Ext.P10 order, I find that the Tribunal has considered the issue raised by the petitioner relating to appointment of Advocate Commissioner. The Tribunal noted that the petitioner has raised the issue only after the Bank took physical possession of the property. The petitioner had no such case earlier. The Tribunal had already taken a view in this regard in IA No.3888/2023. In the afore facts of the case, I do not find any illegality or irregularity in Ext.P10 order.
The OP(DRT) is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE aks/14.05.2024 O.P.(DRT) No.82/2024 :9: APPENDIX OF OP (DRT) 82/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE POSSESSION NOTICE DATED 24/01/2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF THE NOTICE DATED 17/06/2022 ISSUED BY THE ADVOCATE COMMISSIONER TO THE PETITIONER.
Exhibit P3 TRUE COPY OF THE LAWYER NOTICE DATED 22/11/2023 ISSUED BY THE PETITIONER TO THE RESPONDENTS 2-4.
Exhibit P4 TRUE COPY OF THE ORDER DATED 21/12/2023 IN IA NO 3888/2023 IN SA 49/2022.
Exhibit P5 TRUE COPY OF THE IA NO 155/2024 ( EXCLUDING ANNEXURES ) IN SA 49/2022 (APPLICATION FOR AMENDMENT) BEFORE THE 1ST RESPONDENT.
Exhibit P6 TRUE COPY OF IA NO 156/2024 IN SA NO
49/2022 FILED BEFORE THE 1ST
RESPONDENT (APPLICATION FOR
APPOINTMENT OF ADVOCATE COMMISSIONER AND QUALIFIED STRUCTURAL ENGINEER TO CONDUCT LOCAL INVESTIGATION ).
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 17/01/2024 IN OP (DRT) NO 25/2024 OF THIS HON'BLE COURT.
Exhibit P8 TRUE COPY OF THE ORDER DATED 24/01/2024 IN SA NO 49/2022 DOWNLOADED FROM THE WEBSITE OF THE 1ST RESPONDENT TRIBUNAL.
O.P.(DRT) No.82/2024: 10 : Exhibit P9 TRUE COPY OF THE SA NO. 49/2022 OF THE 1ST RESPONDENT AS AMENDED AS PER ORDERS DATED 23/09/2022 IN I.A NO.
1917/2022 AND ORDER DATED 20/12/2023 IN IA NO 3891/2023 AND ORDER DATED 24/01/2024 IN IA NO. 155/2024 ( EXCLUDING ANNEXURES).
Exhibit P10 TRUE COPY OF THE ORDER DATED
09/02/2024 IN IA NO 156/2024 IN SA NO
49/2022 OF THE 1ST RESPONDENT
TRIBUNAL.