Girish Kumar.R vs The Authorised Officer, Lic ...
2022 Latest Caselaw 2299 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

 WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943

                   OP (DRT) NO. 214 OF 2021

AGAINST SA 96/2020 OF DEBT RECOVERY TRIBUNAL-II, ERNAKULAM

PETITIONERS/APPLICANT:

    1     GIRISH KUMAR.R.,
          AGED 42 YEARS, S/O.LATE RAJAGOPAL,
          RAJAGIRI, PALACE WARD,
          OLAYILCHERRY, THEVALLY P.O.,
          KOLLAM-691 009.
    2     MEENA GIRISH KUMAR,
          AGED 41 YEARS, W/O.GIRISH KUMAR,
          RAJAGIRI, PALACE WARD,
          OLAYILCHERRY, THEVALLY P.O.,
          KOLLAM-691 009.
          BY ADV V.K.PEER MOHAMED KHAN


RESPONDENT/DEFENDANT:

          THE AUTHORISED OFFICER,
          LIC HOUSING FINANCE LTD.,
          THIRUVANANTHAPURAM BRANCH,
          2ND FLOOR, LEELA TOWERS,
          KESAVADASAPURAM P.O.,
          THIRUVANANTHAPURAM-695 004.
          BY ADVS.
          SHRI.A.S.P.KURUP, SC,
          SHRI.C.P.ANIL RAJ
          SHRI.SADCHITH.P.KURUP


     THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 22.02.2022, THE COURT ON 02.03.2022 DELIVERED
THE FOLLOWING:
 O.P.(DRT) No.214/21                      -:2:-




                        BECHU KURIAN THOMAS, J.
                        -----------------------------------------
                           O.P.(DRT) No.214 of 2021
                         ----------------------------------------
                      Dated this the 2nd day of March, 2022

                                   JUDGMENT

Petitioners seek for a direction to stay further proceedings

under the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (for short 'the Act') in S.A.

No.96 of 2020 pending before the Debts Recovery Tribunal-II,

Ernakulam.

2. First petitioner is a businessman, whose business is alleged

to have run into troubled waters after the floods ravished the State of

Kerala. For the purpose of a housing loan, petitioners availed an

amount of Rs.2,25,00,000/- from the respondent against security of

the property of the first petitioner. Due to default in repayment, the

respondent initiated proceedings under the Act.

3. Contending that the proceedings for recovery under the Act

are illegal, petitioners preferred S.A. No.96 of 2020 before the Debts

Recovery Tribunal-II, Ernakulam and also sought for a stay of further

proceedings. However, since the Tribunal was not sitting, petitioners

approached this Court by filing W.P.(C) No.4835 of 2020, which was

finally disposed of as per Ext.P2 judgment directing the secured

creditor to defer the proceedings for recovery by one week to enable

the petitioners to avail the remedy before the Tribunal.

4. According to the petitioners, since the Tribunal did not

function effectively, they could not obtain appropriate orders and the

respondent initiated fresh proceedings under section 14 of the Act to

take possession, which compelled the petitioners to file this original

petition.

5. A counter affidavit has been filed by the respondent pointing

out that in the securitisation application pending before the Debts

Recovery Tribunal, the pleadings were completed much earlier and

that, all the contentions raised by the petitioners have been

countered. It was further pleaded that there was no illegality in the

measures adopted and that no interim orders were obtained by the

petitioners from the Tribunal apart from substantial amounts due

from the petitioners to the respondent. It was submitted that the

loans were availed by both petitioners separately in their joint names.

The first petitioner had availed a loan of Rs.1.50 Crores on

29.11.2017 while the second petitioner availed a loan of

Rs.75,00,000/- on the very same day itself and the accounts were

classified as NPA as early as on 05.08.2019. It was alleged that

there is a total outstanding amount of Rs.2,99,35,000/- due from the

petitioners and that their attempt is to drag on the matter without

making any payment. The respondent also pleaded that the total

overdue amount in the name of the first petitioner alone totals to

Rs.70,30,000/- while the overdue amount under the loan account of

the second petitioner totals to Rs.28,60,000/-.

6. I have heard Sri.V.K.Peer Mohamed Khan, learned counsel

for the petitioners as well as Sri.A.S.P. Kurup, learned counsel for the

respondent.

7. The proceedings initiated by the respondent under the Act

cannot be interdicted in the absence of any specific legal

contentions. Pendency of a securitisation application before the

Tribunal by itself is not a ground to interdict the securitisation

proceedings, especially when large amounts are due to the

respondent from the petitioners. It is evident from the pleadings that

the separate loan accounts of petitioners 1 and 2 were declared as

NPA as early as on 05.08.2019 and till date, no amounts have been

paid by the petitioners. It is seen from Ext.P1 securitisation

application that it was filed on 17.02.2020. One of the Presiding

Officers was functioning till the third week of March, 2020 while the

other Presiding Officer functioned till September, 2020. In Ext.P2

judgment, this Court had refused to grant any stay of the

proceedings except to defer the implementation of securitisation

proceedings for a period of one week to enable the petitioners to

seek remedies before the Tribunal. Despite such benefit granted to

the petitioners, no orders had been obtained.

8. This original petition was filed only on 29.10.2021 and an

interim order was granted by this Court on 02.11.2021, which

continued till the date of hearing. No amounts are seen deposited by

the petitioners till date. According to the learned counsel for the

respondent, more than Rs.Three Crores are due from the petitioners.

In view of the above, the mere pendency of securitisation application

by itself shall not be a reason for this Court to interdict the

proceedings initiated under the statute. The Supreme Court as well

the High Courts have consistently held that securitisation

proceedings are not to be interfered with by the courts without any

reason. (See Authorised Officer, State Bank of Travancore and

Another v. Mathew K.C. [(2018) 3 SCC 85])

9. Since the petitioners had failed to obtain any orders from

the Tribunal, during the pendency of the securitisation application,

this Court is of the opinion that interdicting the respondent from

proceeding with securitisation proceedings initiated against the

petitioners is not warranted in the circumstances of the case.

Accordingly this original petition is dismissed.

Sd/-

BECHU KURIAN THOMAS JUDGE vps

APPENDIX OF OP (DRT) 214/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER AS SA NO.96/2020 BEFORE THE DEBT RECOVERY TRIBUNAL II, ERNAKULAM ALONG WITH ANNEXURES.

EXHIBIT P2               TRUE COPY OF THE JUDGMENT OF THE
                         HONOURABLE HIGH COURT OF KERALA IN WPC
                         NO.4835/2020.
EXHIBIT P3               TRUE COPY OF THE WRITTEN STATEMENT FILED
                         BY THE RESPONDENT IN SA NO.96/2020
                         BEFORE THE DEBT RECOVERY TRIBUNAL II,
                         ERNAKULAM ALONG WITH ANNEXURES.
EXHIBIT P4               TRUE COPY OF THE NOTICE ISSUED BY THE
                         ADVOCATE COMMISSIONER IN MC NO.92/2020.