Sony Sebastian vs Kerala Gramin Bank
2022 Latest Caselaw 10866 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
 THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944
                   OP (DRT) NO. 427 OF 2022
 AGAINST THE ORDER DATED 06.10.2022 IN I.A.NO.2126 OF 2022 IN
  S.A.NO.463 OF 2022 BEFORE THE DEBT RECOVERY TRIBUNAL - I,
                          ERNAKULAM
PETITIONERS/ PETITIONERS/ APPLICANTS :

    1     SONY SEBASTIAN,
          AGED 62 YEARS, S/O DEVASIA,
          VADAKKE POONDIKULATH, THERMALA
          VELLAD P.O., KANNUR DISTRICT,
          PIN - 670 571

    2     DEVASIA P.A.
          AGED 59 YEARS, S/O AGUSTY,
          PALAPPURATH (H), PATHENPARA
          ALAKKODE P.O. KANNUR DISTRICT,
          PIN - 670571

    3     MERCY DEVASIA,
          AGED 50 YEARS, W/O DEVASIA P.A.,
          PALAPPURATH (H), PATHENPARA
          ALAKKODE P.O. KANNUR DISTRICT,
          PIN - 670 571

    4     ROY JOSEPH,
          AGED 52 YEARS, S/O JOSEPH,
          LAKSHMI NIVAS, TALAP,
          PALLIKKUNNU P.O. KANNUR DISTRICT,
          PIN - 670 004

    5     JESSY JOSEPH,
          AGED 57 YEARS, W/O SONY SEBASTIAN,
          CHERUVALLATH, THERMALA
          VELLAD P.O. KANNUR DISTRICT,
          PIN - 670 571

    6     SHEEBA JOSEPH,
          AGED 42 YEARS, W/O ROY JOSEPH,
          LAKSHMI NIVAS, TALAP,
 OP (DRT) NO. 427 OF 2022
                                    2

            PALLIKKUNNU P.O. KANNUR DISTRICT,
            PIN - 670 004

            BY ADVS.
            ALEX ABRAHAM
            C.C.ABRAHAM
            ARUN KRISHNA DHAN



RESPONDENTS/ RESPONDENTS/ RESPONDENTS :

    1       KERALA GRAMIN BANK,
            REPRESENTED BY ITS AUTHORISED OFFICER,
            KANNUR MAIN BRANCH, FORT ROAD,
            KANNUR P.O., KANNUR, PIN - 670 001

    2       THE AUTHORISED OFFICER,
            KERALA GRAMIN BANK, KANNUR MAIN BRANCH,
            FORT ROAD, KANNUR P.O.,
            KANNUR, PIN - 670 001



            BY SRI.M.GOPIKRISHNAN NAMBIAR, SC




     THIS   OP   (DEBT   RECOVERY   TRIBUNAL)   HAVING   COME   UP   FOR
ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 OP (DRT) NO. 427 OF 2022
                                     3




                      BECHU KURIAN THOMAS, J.
                      --------------------------------
                      O.P (DRT) No.427 of 2022
                     ---------------------------------
                 Dated this the 3rd day of November, 2022

                               JUDGMENT

Challenge in this original petition is against an interim order issued

by the Debts Recovery Tribunal, Ernakulam in I.A.No.2126/2022 in

S.A.No.463/2022. The impugned order is Ext.P6. Other reliefs, including

a direction to consider an application for issuance of an Advocate

Commission is also sought in this petition under Article 227 of the

Constitution of India.

2. Petitioners are borrowers from the 1 st respondent. As there was

default in repayment of the loan, proceedings were initiated under the

Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002 (for short, 'the SARFAESI Act'). Since the

Debts Recovery Tribunal was not functioning, petitioners approached this

Court in W.P.(C) No.30023/2021. The primary contention raised therein

was that the first respondent could not have taken recourse to the

SARFAESI Act as the security interest was created over an agricultural

property.

3. Taking note of the contentions in the writ petition and also the OP (DRT) NO. 427 OF 2022

non-functioning of the Debts Recovery Tribunal, Ernakulam, this Court

granted an interim stay on 22.12.2021 in the aforenoted writ petition.

Subsequently, after the Tribunal commenced its functioning, this Court

disposed of the aforesaid writ petition on 10.08.2022 and relegated the

petitioners to seek appropriate remedies before the Tribunal. The interim

order already granted, was extended for a limited period of eight weeks

to enable the petitioners to approach the Tribunal.

4. Pursuant to the said order which is produced as Ext.P3,

petitioners filed SA.No.463/2022 along with two applications as

I.A.No.2126/2022 for stay of the proceedings and also I.A.No.2240/2022,

requesting for the appointment of an Advocate Commissioner to ascertain

inter alia the nature of the property mortgaged. By the impugned order

dated 06.10.2022, the learned Tribunal without considering the

application for appointment of an Advocate Commissioner directed the

petitioners to deposit two instalments of Rs.41,61,109/- each, on

05.11.2022 and the next on 05.12.2022. It was also directed that if the

petitioners fail to make the said payment, the interim stay already

granted will stand vacated and the application for stay will stand closed

automatically.

5. Sri.Alex Abraham, the learned counsel for the petitioners

submitted that the application for appointment of an Advocate

Commissioner has not even been considered and without reference to the

specific contention of the petitioners that the property is an agricultural OP (DRT) NO. 427 OF 2022

land, standing outside the purview of the SARFAESI Act, the Tribunal

erroneously issued a conditional order of stay, thereby practically

compelling the petitioners to pay the amount without even granting an

opportunity of having their contentions considered or appreciated by the

Tribunal. It was also submitted that though this Court had directed

consideration of the application on merits as per Ext.P3, the Tribunal

failed to adhere to the said direction.

6. Sri.M.Gopikrishnan Nambiar, the learned Standing Counsel for

the respondents, on the other hand attempted to justify the order of the

Tribunal and contended that if at all the petitioners are aggrieved, they

have a remedy in the form of an appeal before the Appellate Tribunal.

7. I have considered the rival contentions. From the very

beginning, the petitioners had been contending that the proceedings

under the SARFAESI Act is beyond the jurisdiction since the property over

which the security interest has been created is an agricultural property.

The said contention goes to the root of the very authority to initiate

proceedings under the SARFAESI Act. Petitioners are entitled to adduce

sufficient evidence to justify the said contention. An application for

appointment of a Commissioner is a measure and means of adducing

evidence before the adjudicatory forum. Without considering the

application for appointment of a Commissioner, the Tribunal has directed

the petitioners to pay a portion of the amount sought to be recovered by

the securitisation proceedings. The failure to consider the application for OP (DRT) NO. 427 OF 2022

appointment of an Advocate Commissioner has resulted in a failure to

exercise the jurisdiction vested in the Tribunal. Further the direction to

deposit the amounts as directed in Ext.P6, without appreciating or

referring to the nature of contentions raised, is an order passed in

irregular exercise of the jurisdiction.

8. Apart from the above, it is noticed that in Ext.P3, this Court had

directed the application, if any, filed by the petitioners to be considered

on merits. The impugned order does not consider the contention of the

petitioners on merits. In fact, it is mentioned in the impugned order that

the Tribunal is not going into the merits and has also observed that if the

amounts directed to be deposited is not paid, the application for stay shall

stand vacated. The said order is thus contrary to the direction in Ext.P3

and is liable to be set aside.

9. Though the writ petitioners have an alternative remedy before

the Appellate Tribunal, this Court is of the opinion that considering the

nature of contentions raised and the manner in which Ext.P6 order was

issued, notwithstanding the alternative remedy, the jurisdiction under

Article 227 of the Constitution of India is required to be exercised. The

power of superintendence of the High Court can be exercised in

appropriate cases as held by the Supreme Court in Chandrakumar v.

Union of India and Others [(1997) 3 SCC 261].

10. In view of the above, Ext.P6 order in I.A.No.2126/2022 is

hereby set aside. Since the application for appointment of an Advocate OP (DRT) NO. 427 OF 2022

Commissioner filed as IA.No.2240/2022 in SA.No.463/2022 is pending

consideration before the said Tribunal, I direct the Debts Recovery

Tribunal-I, Ernakulam to consider the said application and pass

appropriate orders, in accordance with law, within a period of 30 days

from today after such orders are issued. The Tribunal will also be at

liberty to consider IA.No.2126/2022 afresh and in accordance with law.

All coercive proceedings against petitioners, pursuant to the order in CMP

No.2778/2021 of the Chief Judicial Magistrate's Court, Thalassery shall be

kept in abeyance till fresh orders are passed on I.A.No.2126/2022.

The original petition is allowed as above.

BECHU KURIAN THOMAS, JUDGE

RKM OP (DRT) NO. 427 OF 2022

APPENDIX OF OP (DRT) 427/2022

PETITIONERS' EXHIBITS :

Exhibit-P1 TRUE COPY OF THE ORDER DATED 22.12.2021 IN W.P.(C). NO 30023/2021

Exhibit-P2 TRUE COPY OF THE JUDGMENT IN W.P.(C). NO 30023/2021 DATED 10.08.2022

Exhibit-P3 TRUE COPY OF THE APPLICATION IN S.A. NO 463/2022 DATED 16.09.2022 BEFORE THE DEBT RECOVERY TRIBUNAL - I, ERNAKULAM

Exhibit-P4 TRUE COPY OF I.A. NO. 2126 OF 2022 IN S.A. 463 OF 2022 BEFORE THE DEBT RECOVERY TRIBUNAL - I, ERNAKULAM

Exhibit-P5 TRUE COPY OF I.A. NO. 2240 OF 2022 IN IN S.A. 463 OF 2022 BEFORE THE DEBT RECOVERY TRIBUNAL - I, ERNAKULAM

Exhibit-P6 CERTIFIED COPY OF THE AD INTERIM ORDER IN I.A. 2126 OF 2022 IN S.A. 463 OF 2022 BEFORE THE DEBT RECOVERY TRIBUNAL - I, ERNAKULAM