Kerala High Court
P A Shihabuddeen vs Authorised Officer on 1 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
WP(C) NO. 40166 OF 2022
PETITIONER:
P A SHIHABUDDEEN
AGED 47 YEARS
P.M. HOUSE, CHERUKARA P.O.,
PERINTALMANNA, MALAPPURAM - 679340.
BY ADVS.
S.EASWARAN
K.V.RAJESWARI
P.MURALEEDHARAN (IRIMPANAM)
VARUGHESE CHERIAN
RESPONDENTS:
M/S.PEGASUS ASSET RECONSTRUCTION LTD., NO.31/970 B2,
UZHIZELIL TOWERS,1ST FLOOR, SUBHASH CHANDRA BOSE ROAD,
PONNRUNNI, VYTTILA, ERNAKULAM, KOCHI - 692019,
REPRESENTED BY ITS AUTHORISED OFFICER.
BY ADVS.
ANJU MOHAN
ELIZEBATH GEORGE
RENJITH.R(K/695/2000)
ANISH JOSE ANTONY(K/000078/2021)
B.H.ANSIL(K/305/2010)
SRI. RANJITH. R.,SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 40166 OF 2022
2
T.R. RAVI, J.
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W.P.(C) No.40166 of 2022
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Dated this the 01st day of February, 2023
JUDGMENT
Proceedings under Section 14 of the SARFAESI Act, 2002
have been challenged by the petitioner in SA No.203 of 2019
before the Debt Recovery Tribunal-1, Ernakulam. The copy of
the application is produced as Ext.P10. The respondent filed a
written statement. Thereafter the matter was heard and
reserved for orders. At that stage, an application was filed by
the respondent-financial institution for re-opening the case.
2. The counsel for the respondent submits that the
re-opening was sought only for the production of a document.
The Debt Recovery Tribunal re-opened the case for further
hearing. Admittedly, the case has not been heard so far. It is
submitted that the case stands posted to April, 2023 for
further hearing.
3. The grievance of the petitioner is that pending
hearing of the case which had been re-opened at the instance
WP(C) NO. 40166 OF 2022
of the respondent, the respondent had taken forceful
possession of the property on 09.12.2022. The petitioner has
approached this Court since it would not be possible for the
petitioner to approach the Debt Recovery Tribunal for re-
possession.
4. The Counsel for the respondent submits that there is
an undertaking not to take possession till the filing of the
written statement and thereafter the Tribunal had not stayed
taking of possession and it was in these circumstances that
the possession was taken.
5. I do not think the above conduct can be justified in
any manner. The matter is still pending before the Debt
Recovery Tribunal and it is re-opened at the instance of the
respondent. The respondent could have waited for the orders
of the Tribunal before taking possession. Since the property is
already charged in favour of the respondent, there is no
necessity to take hasty steps for taking possession particularly
when the re-opening of the case was at the instance of the
respondent.
WP(C) NO. 40166 OF 2022
In such circumstances, interest of justice requires that
the petitioner is put back in possession and the respondent
proceeds to take possession in a manner known to law after
the disposal of SA No.203 of 2019 by the Debt Recovery
Tribunal. There will hence be a direction to the respondent to
restore possession of the property of the petitioner within one
week. The respondent may move the Debt Recovery Tribunal
for advancing the hearing of the application and on such
request being made, the Debt Recovery Tribunal shall hear
the same at the earliest and pass orders. Since restoration of
possession is directed, there will be a direction to the Chief
Judicial Magistrate's Court, Manjeri to re-open
Crl.M.P.No.1003 of 2019 for enabling further action.
Sd/-
T.R.RAVI
JUDGE
mpm
WP(C) NO. 40166 OF 2022
APPENDIX OF WP(C) 40166/2022
PETITIONER'S EXHIBITS
Exhibit P1 COPY OF THE ORDER DATED 31-10-20217 IN SA
NO 314 OF 2014 ON THE FILES OF DEBT
RECOVERY TRIBUNAL -1 ERNAKULAM.
Exhibit P2 COPY OF SA NO 203 OF 2019 (WITHOUT
ANNEXURES) ON THE FILE OF DRT-1
ERNAKULAM.
Exhibit P3 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 15-7-2019 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
Exhibit P4 COPY OF WRITTEN STATEMENT FILED BY THE
RESPONDENTS IN SA 203 OF 2019 ON THE
FILES OF DRT-1 ERNAKULAM.
ExhibitP5 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 4-8-2021 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
ExhibitP6 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 1-8-2022 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
Exhibit P7 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 17-8-2022 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
ExhibitP8 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 19-9-2022 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
WP(C) NO. 40166 OF 2022
ExhibitP9 COPY OF THE IA NO 2265 OF 2022 IN SA NO
203 OF 2019 FOR ADVANCE HEARING OF SA
203/2019.
ExhibitP10 COPY OF THE IA NO 2266 OF 2022 IN SA NO
203 OF 2019 SEEKING FOR STAY OF FURTHER
PROCEEDINGS.
ExhibitP11 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 12-10-2022 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
ExhibitP12 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 18-10-2022 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
Exhibit P13 COPY OF THE IA NO 2486 OF 2022 IN SA NO
203 OF 2019 ON THE FILES OF DRT-1
ERNAKULAM.
Exhibit P14 COPY OF THE IA NO 2493 OF 2022 IN SA NO
203 OF 2019 ON THE FILES OF DRT-1
ERNAKULAM.
Exhibit P15 OPY OF THE EXTRACT OF A DIARY PROCEEDINGS
DATED 4-11-2022 IN SA NO 203 OF 2019 ON
THE FILES OF DRT-1 ERNAKULAM OBTAINED
FROM WEB SITE.
ExhibitP16 COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 1-12-2022 IN SA NO 203
OF 2019 ON THE FILES OF DRT-1 ERNAKULAM
OBTAINED FROM WEB SITE.
ExhibitP17 COPY OF THE LETTER DATED 16-11-2022
SUBMITTED BY THE PETITIONER BEFORE THE
RESPONDENT FOR ONE TIME SETTLEMENT.
WP(C) NO. 40166 OF 2022
Exhibit P18 PHOTOGRAPH EVIDENCING THE TAKING OF
POSSESSION OF THE SECURED ASSET.
Exhibit P19 COPY OF THE MEDICAL CERTIFICATE DATED
15-12-22.
Exhibit P20 COPY OF THE MEDICAL SUMMARY REPORT DATED
15-12-22.
Exhibit P21 COPY OF LETTER DATED 25-10-2022 BY DR
ABDU JALEEL TO DR BINEESH.
Exhibit P22 COPY OF PRESCRIPTION DATED 5-8-2022
ISSUED BY DR AZAR KALLIYATH.
Exhibit P23 COPY OF PRESCRIPTION DATED 30-8-2022
ISSUED BY DR UMMER K BABY OF BABY
MEMORIAL HOSPITAL.
Exhibit P24 COPY OF MRI BRAIN REPORT DATED
30-11-2022.
