Sijo Joseph vs The South Indian Bank Ltd
2021 Latest Caselaw 766 Ker

               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

                                  2


                             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

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

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





                                 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.