Anas P.J vs State Bank Of India Rep. By Its ...

Kerala High Court

Anas P.J vs State Bank Of India Rep. By Its ... on 21 May, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE N.NAGARESH
         TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                         OP (DRT) NO. 100 OF 2024
PETITIONER:

              ANAS P.J,
              AGED 53 YEARS
              S/O MR.P.A.JAFFER,
              PUTHENVEEDU,
              CHANDANAKAVU,ALAPUZHA,
              PIN - 688011
              BY ADV E.V.MOLY


RESPONDENTS:

     1        STATE BANK OF INDIA,
              REP. BY ITS AUTHORIZED OFFICER
              STRESSED ASSET RECOVERY BRANCH, 7TH FLOOR ,
              VANKARATH TOWERS, PALARIVATTOM BY-PASS JUNCTION ,
              ERNAKULAM, PIN - 682024

     2        MOHAMMED NOOHU NAHEEM
              S/O MOHAMMED NOOHU, NETTACHAZIKOM,
              THEKKUMBHAGOM, PARAVUR,KOLLAM,
              PIN - 691301

              BY ADVS.
              Ambily S
              RUPA R. NAIR(K/001021/2023)
              RUBAN JOE TONIYO(K/002926/2022)
              MATHEW JOSEPH BALUMMEL(K/001219/2019)
              K.K.CHANDRAN PILLAI (SR.)(C-41)


     THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(DRT) NO.100 OF 2024
                              2

                           JUDGMENT

Dated this the 21st day of May, 2024 The petitioner is the guarantor for a credit facility availed by his brother in the year 2013 from the erstwhile State Bank of Travancore. The initial limit sanctioned was ₹1 Crore, which was later enhanced to ₹1.30 Crores in the year 2014. The CC limit was reduced to ₹57 lakhs by repayment of ₹6,48,000/- as working capital term loan in the year 2019.

2. The petitioner states that the loan account could not be maintained by the borrower and the respondent Bank initiated coercive proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The secured asset mortgaged by the petitioner was auctioned on 27.09.2022 for a sum of ₹1,13,20,000/- against recovery of an amount of ₹73,72,315/- due from the borrower.

3. According to the petitioner, the sale conducted by the Bank is highly arbitrary and illegal. The petitioner has filed OP(DRT) NO.100 OF 2024 3 S.A.No.74/2023 before the Debts Recovery Tribunal - 2, Ernakulam. In the stay petition filed by the petitioner, the Debts Recovery Tribunal initially granted a status quo. Subsequently, the status quo order has been vacated. Aggrieved by the said order, the petitioner has approached the Debts Recovery Appellate Tribunal. Along with the Appeal, the petitioner has filed a stay petition and a waiver petition.

4. Though the petitioner approached the Debts Recovery Appellate Tribunal in the month of February, 2024, the Tribunal has not passed orders in the waiver application so far. In the meanwhile, the Advocate Commissioner appointed under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is threatening to take over physical possession of the residential property mortgaged.

5. The petitioner would submit that the petitioner has a fair chance to get the impugned order set aside by the OP(DRT) NO.100 OF 2024 4 Appellate Tribunal. In the meanwhile, if the respondent Bank is taking the physical possession of the petitioner's property, then the petitioner will be put to serious hardship and loss. In the facts of the case, the petitioner seeks to direct the Debts Recovery Appellate Tribunal to consider the stay petition and waiver application filed by the petitioner in a time bound manner and to direct the Bank to defer further coercive proceedings till decision is taken by the Debts Recovery Appellate Tribunal on the stay petition and waiver application.

6. Standing Counsel entered appearance and resisted the writ petition. On behalf of the respondent-Bank, it is submitted that earlier when the Bank initiated proceedings under the SARFAESI Act, 2002, the borrower had filed W.P. (C.) No. 30151/2022 before this Court. This Court disposed of the writ petition and directed the petitioner therein/borrower to make certain payments. The borrower could not make the payments in time. The borrower filed a petition for extension of time to deposit the balance amount. But the said petition OP(DRT) NO.100 OF 2024 5 was dismissed. A Writ Appeal was preferred by the borrower against that judgment. The Writ Appeal was ultimately withdrawn by the borrower.

7. The petitioner has thereafter approached this Court filing this O.P.(DRT). This O.P.(DRT) is without any merit and it is only an attempt to delay the recovery proceedings. The secured asset has already been auctioned in favour of auction purchaser. This O.P.(DRT) is therefore liable to be dismissed, contended the Standing Counsel.

8. I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 1 st respondent Bank.

9. The petitioner approached the Debts Recovery Tribunal filing S.A.No. 74/2023 seeking to set aside the sale of the property which was held on 27.09.2022. There was initially an order of status quo. Ultimately, after hearing the parties, the Debts Recovery Tribunal has vacated the status quo order.

OP(DRT) NO.100 OF 2024 6

10. Aggrieved by the said order of the Debts Recovery Tribunal, the petitioner has approached the Debts Recovery Appellate Tribunal, Chennai. Pleadings would indicate that the petitioner had approached the Debts Recovery Appellate Tribunal on 16.02.2024. The waiver petition filed by the petitioner is dated 16.02.2024. The petitioner had more than three months' time to move the Debts Recovery Appellate Tribunal and obtain orders on the waiver petition and on the stay petition. The petitioner has failed to do so.

11. Therefore, at this stage, the petitioner cannot approach this Court for a direction to the Debts Recovery Appellate Tribunal to finally dispose of his waiver application. It is for the petitioner to pursue the matter before the Debts Recovery Appellate Tribunal.

The O.P.(DRT) fails and it is dismissed.

Sd/-

N.NAGARESH JUDGE DCS OP(DRT) NO.100 OF 2024 7 APPENDIX OF OP (DRT) 100/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE PROCEEDINGS DATED 11.01.2024 IN I.A.452/2023 IN SA.NO.74/2023 PENDING BEFORE DRT-II, ERNAKULAM.

Exhibit P2        THE TRUE COPY OF THE APPEAL FILED BY
                  THE      PETITIONER       VIDE      DIARY

NO.208/2024(RECEIPT DATED 08.02.2024) BEFORE THE DRAT, CHENNAI Exhibit P3 THE TRUE COPY OF THE APPLICATION SEEKING STAY FILED U/S.18(1) OF THE SARFAESI ACT FILED BEFORE THE DRAT, CHENNAI (ID. NO209/2024 DATED 08.02.2024) BY THE PETITIONER Exhibit P 4 THE TRUE COPY OF THE APPLICATION (I.D.NO.210/2024 DATED 08.02.2024) SEEKING WAIVER OF PRE-CONDITIONAL DEPOSIT AS LAID U/S.18(1) (II) OF SARFAESI ACT FILED BY THE PETITIONER Exhibit P5 THE TRUE COPY OF THE M.A (ID.NO.211/2024 DT.08.02.2024)FOR MOVING THE PETITION ON URGENT BASIS FILED BY THE PETITIONER