Kerala High Court

Thomas Antony vs The Authorized Officer on 20 January, 2023

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                         OP (DRT) NO. 21 OF 2023
   AGAINST THE ORDER IN SA 488/2022 OF DEBT RECOVERY TRIBUNAL,
                                ERNAKULAM
PETITIONER:

            THOMAS ANTONY
            AGED 63 YEARS, S/O THOMAS,
            MULAKUPPADOM HOUSE, INDUSTRIAL ESTATE NAGAR P.O.,
            CHETHIPUZHA, CHANGANASSERY, KOTTAYAM-686106.

            BY ADVS.
            M.U.VIJAYALAKSHMI
            K.JAJU BABU (SR.)
            BRIJESH MOHAN
            K.V.SABU
            AKHIL K SABU
            T.S.ATHIRA
            D.SREEKUMAR (KALAMASSERY)


RESPONDENTS:

    1       THE AUTHORIZED OFFICER
            SOUTH INDIAN BANK LTD, REGIONAL OFFICE,
            1ST FLOOR, REGENCY SQUARE, COLLECTORATE P.O., KOTTAYAM
            -686002.

    2       THE MANAGER
            SOUTH INDIAN BANK LTD, CHANGANASSERY BRANCH
            CHANGANASSERY, KOTTAYAM - 686101

    3       THE SOUTH INDIAN BANK LIMITED
            REPRESENTED BY ITS AUTHORIZED OFFICER, REGIONAL OFFICE, 1ST
            FLOOR, REGENCY SQUARE, COLLECTORATE P.O., KOTTAYAM -686002.

    4       SRI. BINO VARGHESE
            MULAKUPPADOM HOUSE, INDUSTRIAL ESTATE NAGAR P.O.,
            CHETHIPUZHA, CHANGANASSERY, KOTTAYAM-686106.

            BY ADVS.
            SUNIL SANKAR.P.
            Sunil Shankar A
            VIDYA GANGADHARAN(K/000424/2020)
            SANDHRA.S(K/001610/2021)

     THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION
ON 20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (Drt) No.21/2023                        -2-

                                   JUDGMENT

The petitioner has approached this court by filing this original petition under

Article 227 of the Constitution of India seeking the following reliefs;

"i. Direct the Debts Recovery Tribunal-II, Ernakulam to consider Ext.P9 application filed in S.A. No.488/2022 (after ordering the respondents 1 to 3 to accept Ext.P8 demand draft) and pass appropriate orders against confirmation of sale and issuance of sale certificate in favour of the 3 rd respondent so as to enable the petitioner to clear the loan account covered by Ext.P2 and P4 by way of rescheduled installment on or before 27-02- 2025.

"ii. Direct the Debts Recovery Tribunal-II, Ernakulam not to permit respondents 1 to 3 to confirm the sale pursuant to Ext.P2 and issue sale certificate in favour of the 4th respondent till final orders are passed on Ext.P9/SA 488/2022)."

2. The petitioner is the applicant in S.A. No.488/2022 on the file of the

Debts Recovery Tribunal-II, Ernakulam. That securitization application has been

filed challenging the proceedings initiated by the respondent bank under the

provisions of the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act (hereinafter referred to as the SARFAESI Act)

to recover the amounts due under a Kissan Cash Credit Overdraft facility availed by

the petitioner. It appears that the Tribunal had passed an order on S.A

No.488/2022 on 22-11-2022 where the petitioner was granted a stay of

confirmation of sale on condition that the petitioner remits a sum of

Rs.1,60,00,000/- in two equal installments i.e., Rs.80,00,000/- payable on or

before 07-12-2022 and the second installment of Rs.80,00,000/- payable on or

before 02-01-2023. It appears that the petitioner failed to comply with the

conditions imposed in the order and the bank confirmed the sale in favour of the 4 th

respondent, who is stated to be none other than the cousin brother of the petitioner.

The petitioner has filed Ext.P9 interlocutory application in S.A No.488/2022

essentially seeking a direction to the respondent bank to accept the payment of

Rs.1,60,00,000/- (belatedly) and has also sought for a direction that the sale

certificate may not be issued in favour of the 4 th respondent.

3. Adv. Jaju Babu, the learned Senior Counsel appearing for the petitioner

on the instructions of Adv. Brijesh Mohan would submit that the only relief now

pressed is for a direction to the Tribunal to consider and pass orders on Ext.P9 after

affording an opportunity of hearing to the petitioner.

4. The learned counsel for the respondent bank would submit that the

original petition itself is not maintainable. It is submitted that the petitioner had

submitted a cheque towards the payment of the amounts imposed as a condition in

the interim order issued by the Tribunal knowing fully well that the cheque would

not be honored. Therefore, it is submitted that it does not lie in the mouth of the

petitioner to seek the relief sought for in Ext.P9. It is submitted that there is

absolutely no defect in the proceedings before the Tribunal warranting a direction

being issued to the Tribunal to consider and pass orders on Ext.P9.

5. The learned Senior Counsel appearing for the petitioner in reply would

submit that the petitioner has a case that the sale in favour of the 4 th respondent is a

collusive affair and valuable property of the petitioner was sold for a throw away

price to the 4th respondent. It is submitted that the respondent bank can have no

objection to a direction being issued to the Tribunal to consider and pass orders on

Ext.P9 as even without a direction from this court, it is incumbent on the part of the

Tribunal to consider and pass orders on any interlocutory application that may be

filed in S.A. 488/2022.

6. Having heard the learned Senior Counsel appearing for the petitioner

and the learned counsel appearing for the respondent bank, I am of the view that

the respondent bank can have no objection to a direction being issued to the

Tribunal to consider and pass orders on Ext.P9 interlocutory application after

affording an opportunity of hearing to all parties concerned.

7. Therefore, this original petition will stand disposed of directing the

Tribunal to consider and pass orders on Ext.P9 interlocutory application after

affording an opportunity of hearing to all concerned. Considering the nature of the

relief sought for in the interlocutory application the Tribunal shall endeavour to

consider and pass orders on Ext.P9 within a period of two months from the date of

receipt of a certified copy of this judgment.

I make it clear that I have not expressed any opinion on the merits of the

matter and it is open to the Tribunal to decide the interlocutory application in

accordance with law.

Sd/-

GOPINATH P.

JUDGE

AMG

APPENDIX OF OP (DRT) 21/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 24.8.2022 IN W.P.

Exhibit P2 TRUE COPY OF THE TENDER CUM AUCTION NOTICE DATED 7.10.2022 ISSUED BY THE 1ST RESPONDENT BANK TO THE PETITIONER.

Exhibit P3 TRUE COPY OF THE PROCEEDING IN SA.NO.488/2022 DATED 22.11.2022 PASSED BY THE HON'BLE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM

Exhibit P4 TRUE COPY OF THE NOTICE VIDE NO.RO/KTYM/NA/025/2022-2023 DATED 12.12.2022 ISSUED BY THE 1ST RESPONDENT

Exhibit P5 TRUE COPY OF THE LETTER DATED 26.12.2022 FORWARDED BY THE PETITIONER TO THE 2ND RESPONDENT.

Exhibit P6 TRUE COPY OF THE LETTER VIDE NO.CGY/AG/31/2022-23 DATED 27.12.2022 ISSUED BY THE SENIOR MANAGER OF THE BANK

Exhibit P7 TRUE COPY OF THE PROCEEDINGS INSA.NO.488/2022 DATED 4.1.2023 PASSED BY THE HON'BLE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM

Exhibit P8 TRUE COPY OF THE DEMAND DRAFT DATED 07.01.2023 IN FAVOUR OF THE 1ST RESPONDENT FOR RS.1,62,00,000/-.

Exhibit P9 TRUE COPY OF THE AFFIDAVIT ALONG WITH APPLICATION FOR DIRECTION AND ADVANCEMENT OF THE CASE FILED BEFORE THE TRIBUNAL ON 13.01.2023 (WITHOUT ANNEXURE.A1)

Exhibit P10 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14.01.2023 FILED BY THE 3RD RESPONDENT IN W.P.

(C).NO.829/2023 BEFORE THIS HON'BLE COURT.

Exhibit P11 TRUE COPY OF THE LETTER NO.RO/KTYM/NA 194/2022-23 DATED 10.01.2023 ISSUED BY THE BANK TO THE PETITIONER.