Mss Hospital And Nursing College ... vs M/S South Indian Bank Ltd ...
2022 Latest Caselaw 10327 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
         FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                        OP (DRT) NO. 396 OF 2022
PETITIONERS:
     1     MSS HOSPITAL AND NURSING COLLEGE PRIVATE LIMITED,
           8/432A, KAKKADA, PUTHALA, VENMONY, ALAPPUZHA
           KERALA, PIN- 689 509, REPRESENTED BY ITS MANAGING DIRECTOR
           SRI. RAHEEM RAUTTHER.

     2      RAHIM RAUTTHER,
            AGED 58 YEARS,
            16 C & D, LINK HERITAGE,
            CHITTOOR ROAD, KACHERIPPADY, ERNAKULAM,
            KERALA, PIN - 682 018

            BY ADVS.
            M.G.SREEJITH
            LUKE J CHIRAYIL
            P.JAYA
            VIDYAJITH M.


RESPONDENTS:
     1     M/S SOUTH INDIAN BANK LTD,
           DOOR NO.396/XVII, M C ROAD,
           PANDALAM, PATHANAMTHITTA,
           KERALA, PIN - 689501,
           REPRESENTED BY ITS BRANCH MANAGER

     2      THE AUTHORIZED OFFICER,
            SOUTH INDIAN BANK LTD,
            REGIONAL OFFICE, 2ND FLOOR
            TMJ COMPLEX, RAMANCHIRA, THIRUVALLA, KERALA, PIN - 689107.

     3      THE DEBT RECOVERY TRIBUNAL, ERNAKULAM
            KERALA STATE HOUSING BOARD,
            PANAMPILLY NAGAR, ERNAKULAM, KERALA, PIN - 682036,
            REPRESENTED BY ITS REGISTRAR,

            ADV. SUNIL SHANKAR (SC)


     THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (DRT) NO. 396 OF 2022

                                    2


                              JUDGMENT

The petitioners have approached this Court being aggrieved

by the fact that steps are being taken by the Bank to take physical

possession of some of the secured assets at a time when the stay

application filed by the petitioner in S.A.No.167 of 2022 of Debts

Recovery Tribunal - II, Ernakulam is pending consideration before

the Tribunal.

2. The learned counsel appearing for the petitioners would

state that the steps being taken by the Bank to take physical

possession of some of the secured assets is clearly illegal and

unsustainable, considering the fact that the application for stay of

proceedings initiated under the SARFAESI Act is pending

consideration before the Tribunal. It is submitted that the

contention taken by the petitioners before the Tribunal is that the

properties, which are now sought to be taken possession of, are

agricultural lands, against which proceedings under the SARFAESI

Act cannot be initiated. He also relies on certain certificates to

prove his point that the lands in question are agricultural lands. He

states that the Bank is attempting to take possession of the lands,

which are stated to be agricultural lands, only to ensure that the

contention taken by the petitioners before the Tribunal is not OP (DRT) NO. 396 OF 2022

considered on merits. It is submitted that the petitioners have

considerable reputation in the locality and if the Bank takes

possession of even some among the secured assets, the entire

reputation of the petitioners will be affected.

3. The learned counsel appearing for the respondent Bank

points out that the petitioners had earlier approached this court by

filing W.P.(C)No.24252 of 2021, which was subsequently withdrawn

on account of the fact that the petitioners failed to comply with the

condition upon which this Court had granted stay of proceedings.

The learned counsel makes specific reference to the orders dated

24.01.2022 and 25.02.2022 in that writ petition to point out that

the writ petition was withdrawn only on account of the fact that

the petitioners could not comply with the conditions imposed by

this Court while granting the interim order of stay. It is submitted

that thereafter, the petitioners approached the Debts Recovery

Tribunal by filing a securitisation application and the same is

pending consideration before the Tribunal. It is submitted that the

filing of the present Original Petition is another attempt by the

petitioners to delay the proceedings initiated by the Bank and this

cannot be permitted under any circumstances.

4. The learned counsel for the petitioners in reply state OP (DRT) NO. 396 OF 2022

that the petitioners had filed an application for stay along with an

application for appointment of Advocate Commissioner before the

Tribunal in time. It is submitted that the Bank had objected to the

amendment application filed by the petitioners to challenge the

proceedings under Section 14 of the SARFAESI Act and this was the

reason why the stay petition could not be considered on merits by

the Tribunal. It is submitted that the petitioners have also filed an

advance petition for early hearing of the stay petition and the said

application is also numbered. It is pointed out with reference

Ext.P10 that the securitisation application filed by the petitioners

was listed for consideration on 06.10.2022 and the same was

adjourned to be heard on 15.12.2022 . It is submitted that in the

totality of the facts and circumstances, the petitioners are entitled

to stay of further proceedings till the Tribunal considers the stay

petition on merits.

5. The learned counsel appearing for the respondent Bank

states that amongst the secured assets is a running hospital, a

residential apartment and two other items of land which is in the

possession of third parties. The learned counsel for the

respondent Bank submits that there is a dilapidated building in one

of the properties, which is in the occupation of third parties. It is

submitted that the Bank does not propose to take possession of OP (DRT) NO. 396 OF 2022

hospital building or the residential apartment of the petitioners as

of now and the proceedings now initiated are only against other

assets and absolutely no prejudice will be caused to the petitioners

if the Bank takes possession of those assets pending consideration

of the stay petition by the Tribunal.

6. Having heard the learned counsel appearing for the

petitioners and the learned counsel appearing for the respondent

Bank, I am clearly of the opinion that there is considerable merit in

the contention taken by the learned counsel for the respondent

Bank that no prejudice will be caused to the petitioners if the

parcels of vacant land (including the one with a dilapidated

building) which are sought to be taken possession of, are actually

taken possession of by the Advocate Commissioner appointed by

the Chief Judicial Magistrate Court, Pathanamthitta. I am inclined

to take this view on account of the fact that it is a specific case of

the learned counsel for the respondent Bank that they do not

intend to take physical possession of the running hospital and the

residential apartment of the petitioners till the stay petition is

decided on merits by the Tribunal.

7. Therefore, this original petition is disposed of with the

following directions:

OP (DRT) NO. 396 OF 2022

I.A.No.1962 of 2022 filed in S.A.No.167 of 2022 shall be heard

and disposed of on merits by the Debts Recovery Tribunal - II,

Ernakulam on or before 30.11.2022. Till such time as orders are

passed on I.A.No.1962 of 2022 filed in S.A.No.167 of 2022, the

respondent Bank shall not take possession of the hospital building

and the residential apartment of the petitioners. I also make it

clear that the Bank may take possession of other items of

properties, mentioned as vacant lands (including the one with a

dilapidated building) and if the petitioners obtain an interim order

and complies with any condition that may be imposed in such

interim order, the possession of the assets which are taken by the

respondent Bank shall be restored to the petitioners. It will also be

open to the petitioners to seek orders from the Tribunal for

appointment of an Advocate Commissioner to inspect the

properties in question before I.A.No.1962 of 2022 filed in

S.A.No.167 of 2022 is decided.

This original petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE DK OP (DRT) NO. 396 OF 2022

APPENDIX OF OP (DRT) 396/2022

PETITIONER EXHIBITS

Exhibit-P1 THE TRUE COPY OF THE JUDGMENT DATED 01.04.2022 IN W.P. (C) NO. 24252 OF 2021 ON THE FILES OF THE HONORABLE HIGH COURT OF KERALA

Exhibit-P2 THE TRUE COPY OF THE SECURITISATION APPLICATION DATED 28.03.2022 NUMBERED AS S.A. NO. 167 OF 2022 ON THE FILES OF THE HONOURABLE DEBT RECOVERY TRIBUNAL, ERNAKULAM

Exhibit-P3 THE TRUE COPY OF THE CASE STATUS THE SECURITISATION APPLICATION DATED 28.03.2022 NUMBERED AS S.A. NO. 167 OF 2022 ON THE FILES OF THE HONOURABLE DEBT RECOVERY TRIBUNAL , ERNAKULAM

Exhibit-P4 THE TRUE COPY OF THE CERTIFICATE DATED 05.08.2022 IN REGARD TO THE PROPERTIES COMPRISING SY. NO. 81/14, 82/15 ISSUED BY THE AGRICULTURAL OFFICER KRISHI BHAVAN, KULANADA

Exhibit-P5 THE TRUE COPY OF THE CERTIFICATE DATED 05.08.2022 IN REGARD TO THE PROPERTIES COMPRISING SY. NO. 302/10, 302/6-1, 302/6-3, 302/6-4, 519/4, 303/4 AND 303/5 ISSUED BY THE AGRICULTURAL OFFICER KRISHI BHAVAN, KULANADA

Exhibit6 THE TRUE COPY OF THE NOTICE ISSUED BY ADV. SARIGA S. PILLAI DATED 26.09.2022, MELEVEETTIL BUILDING, NEAR OLD PRIVATE BUS STAND, PATHANAMTHITTA, MOB:

9446242836

Exhibit7 THE TRUE COPY OF THE AMENDMENT PETITION DATED 09.08.2022 HAVING I.A. NO.

1962/2022 ON THE FILES OF THE HONOURABLE DEBT RECOVERY TRIBUNAL, ERNAKULAM OP (DRT) NO. 396 OF 2022

Exhibit-P7(a) TRUE COPY OF ORDER IN I.A. NO. 1962/2022 ON THE FILES OF THE HONOURABLE DEBT RECOVERY TRIBUNAL , ERNAKULAM DATED 19- 09-2022 UPLOADED IN THE ONLINE PORTAL OF DEBT RECOVERY TRIBUNAL (II), ERNAKULAM

Exhibit-P8 THE TRUE COPY OF THE PETITION DATED 12.04.2022 HAVING I.A. NO. 1960 OF 2022 ON THE FILES OF THE HONOURABLE DEBT RECOVERY TRIBUNAL , ERNAKULAM

Exhibit-P9 THE TRUE COPY OF THE COMMISSION APPLICATION DATED 09.08.2022 NUMBERED AS I.A. NO. 1961 OF 2022 ON THE FILES OF THE HONOURABLE DEBT RECOVERY TRIBUNAL, ERNAKULAM

ExhibiT-P10 THE TRUE COPY OF THE RELEVANT PAGES OF THE CAUSE LIST OF HONOURABLE DEBT RECOVERY TRIBUNAL , ERNAKULAM DATED 06.10.2022

Exhibit-P11 TRUE COPY OF JUDGEMENT DATED 19-08-2022 IN O.P (DRT) NO. 341/2022

Exhibit-P12 TRUE COPY OF ADVANCE APPLICATION FILED BY THE PETITINER HEREIN BEFORE THE DEBT RECOVERY TRIBUNAL ERNAKULAM ON 06-10-

2022.