M/S. The Kerala Plantations vs The South Indian Bank Ltd
2023 Latest Caselaw 6674 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                 OP (DRT) NO. 234 OF 2023
AGAINST THE ORDER PASSED BY DEBTS REECOVERY TRIBUNAL II
    ERNAKULAM IN IA 1406/2023 AND IA 1407/2023 IN SA
 90/2022 DATED 19/5/2023 AND PROCEEDINGS IN IA 48/2023
     IN SA 90/2022 & IA1094/2023 IN SA 90/2022 DATED
                        11.4.2023
PETITIONER/APPLICANT:

             M/S. THE KERALA PLANTATIONS,
             D.NO.48/2654B, SREEVALSAM BUILDING, GROUND
             FLOOR, RSAC RING ROAD, KANIAMPUZHA, NEAR
             MOBILITY HUB VYTTILA, ERNAKULAM - 682
             019,REPRESENTED BY ITS MANAGING PARTNER MR.
             SURENDRAN THARAYIL., PIN - 682019
             BY ADV AMAL GEORGE


RESPONDENTS/DEFENDANTS 1 ,2 AND OFFICIAL PARTY:

      1      THE SOUTH INDIAN BANK LTD,
             KOLENCHERY BRANCH, DOOR NO. 460 C WARD NO.4,
             JJ ARCADE, NH 49 STREET, KOLENCHERY, ERNAKULAM
             DT. 682 311, PIN - 682311.
      2      AUTHORISED OFFICER
             SOUTH INDIAN BANK LTD, REGIONAL OFFICE
             ERNAKULAM, SOUTH INDIAN BANK BUILDING,
             INFOPARK ROAD, KAKKANAD, RAJAGIRI VALLEY PIN
             682 039., PIN - 682039
      3      THE DEBTS RECOVERY TRIBUNAL II ERNAKULAM
             1ST FLOOR, KERALA STATE HOUSING BOARD
             BUILDING, PANAMPALLY NAGAR, ERNAKULAM -
             682036, REPRESENTED BY ITS REGISTRAR, PIN -
             682036
             BY ADVS.
             SUNIL SHANKER
             VIDYA GANGADHARAN(K/000424/2020)
             JERIN GEORGE(K/863/2023)

          THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP
FOR   ADMISSION    ON   14.06.2023,    THE   COURT   ON   20.6.2023
DELIVERED THE FOLLOWING:
 O.P(DRT) No.234 of 2023
                                2


                    C.S.DIAS, J.
              ==================
              O.P(DRT) No.234 of 2023
              ==================
             Dated this the 20th June, 2023

                          JUDGMENT

The original petition is filed to set aside

Exts.P16 and P21 orders passed by the Debt

Recovery Tribunal-II, Ernakulam (in short 'Tribunal').

2. The brief facts relevant for the

determination of the original petition are:

(i) The petitioner is a firm engaged in export of

spices. The first respondent - Bank had sanctioned

credit facilities to the tune of Rs.760/- lakh, which

was later enhanced from time to time.

(ii) Due to the Covid-19 pandemic, the petitioner's

business got seriously affected. Although the

petitioner requested the first respondent to renew

the credit facility, the same was not considered.

Instead, the second respondent issued Ext.P1 notice O.P(DRT) No.234 of 2023

under Section 13(2) of the Securitization and

Reconstruction of Financial Assets and Enforcement

of Security Interest Act (in short, 'Act').

(iii) As the classification of the petitioner's loan

accounts as 'Non Performing Asset' (NPA) is per se

illegal, the petitioner filed S.A No.90/2022 before the

Tribunal, challenging the notices issued under the

Act.

(iv) The petitioner's specific case is that most

of the properties are agricultural lands, which are

exempted from the provisions of the Act under

Section 31(i) of the Act.

(v) To prove the above aspect, the petitioner

had filed an application to appoint an Advocate

Commissioner. Then, the respondents 1 and 2 filed

Exts.P10 and 10A declarations, purportedly signed

by the borrowers/guarantors to prove that the

properties are not agricultural land. Exts.P10 and

P10A are the declarations signed by one of the O.P(DRT) No.234 of 2023

guarantors named Meenakumari.R, who has

emphatically denied her signatures on the said

documents. The said guarantor has sworn in Ext.P13

affidavit stating that Exts.P10 and P10A are not

executed by her.

(vi) In the above background, the petitioner

filed I.A No.1094/2023 (Ext.P14) in S.A 90/2022 to

forward the disputed documents and the specimen

signatures of Meenakumari.R, for expert opinion.

The application was opposed by the respondents 1

and 2 vide Ext.P15 counter affidavit. But, the

Tribunal, by the impugned Ext.P16 order, rejected

Ext.P14 application.

(vii) Shocked by the dismissal of the application,

the petitioner had filed I.A No.1406/2023 (Ext.P17)

to review Ext.P16 order. The said application was

also objected by the respondents 1 and 2 through

Ext.P18 counter affidavit.

(viii) Nonetheless, the Tribunal, by the O.P(DRT) No.234 of 2023

impugned Ext.P21 order, rejected the review petition

also.

(ix) Exts.P16 and P21 orders are patently

erroneous and wrong and are liable to be set aside.

Hence, the original petition.

3. Heard; Sri.George Thomas, the learned

Senior Counsel appearing for the petitioner and

Sri.Sunil Shanker, the learned Standing Counsel

appearing for respondents 1 and 2.

4. The point is whether there is any error in

Exts.P16 and P21 orders?

5. The second respondent has initiated

proceedings against the collateral security offered

by the petitioner and its guarantors, to avail financial

assistance from the first respondent-Bank.

6. The petitioner has challenged the recovery

proceedings by filing S.A No.90/2022 before the

Tribunal, inter alia, contending that the larger extent

of the properties are agricultural lands. To refute O.P(DRT) No.234 of 2023

the allegations of the petitioner and its guarantors,

the respondents 1 and 2 produced Exts.P10 and

P10A declarations signed by Meenakumari.R, who

has allegedly in unequivocal terms declared that the

collateral security offered by her is not an

agricultural land, that she would continue to use the

said property as a non-agricultural land till the

tenure of the loan is over and that she will not take

a contrary stand, if proceedings are initiated for

enforcement of the rights of the respondents 1 and 2

against the property, that the property is not a non-

agricultural land.

7. The petitioner asserts that Meenakumari

has bluntly denied the execution of Exts.P10 and

P10A declarations by way of Ext.P13 affidavit.

Furthermore, Ext.P12 document would establish

that the signature of Meenakumari.R is forged. O.P(DRT) No.234 of 2023

8. To substantiate that the signatures of

Meenakumari on Exts.P10 and P10A are forged, the

petitioner filed Ext.P14 application to send the

disputed declarations for expert opinion to the

Forensic Scientific Laboratory,

Thiruvananthapuram. The application was

vehemently opposed by the respondents 1 and 2,

inter alia, on the ground that the application is filed

on an experimental basis with the sole intention to

protract the recovery proceedings.

9. The Tribunal, after appreciating the rival

pleadings by the impugned Ext.P16 order has held

thus:-

"5. In this particular case the availing of loan and execution of the documents by the borrower and the guarantor is not at all disputed.

Now the applicant alleged that one of the declarations produced by the defendants was not executed by Smt.Meenakumari.R and her signature is fabricated.The said guarantor Smt.Meenakumari.R has not disputed her signature appearing in the document filed by the O.P(DRT) No.234 of 2023

defendants. All these questions would be considered at the time of hearing the SA on merit. As discussed earlier the scope of adjudication before this Tribunal is very limited. Therefore, there is absolutely no necessity in sending any document to Forensic Scientific Laboratory for examination by the hand writing expert. In view of the forgoing reason the I.A No.1094/2023, having no merit, is hereby rejected."

10. Dis-satisfied with Ext.P16 order, the

petitioner filed a review petition which was also

resisted by the respondents 1 and 2 and the

Tribunal by Ext.P21 order held thus:

"5. This Tribunal is conscious of its confines and also the permissible Scope of enquiry under S.17(1) of the SARFAESI Act, wherein it is required to determine as to the legality or otherwise of the measures taken by the secured creditor under S.13(4) of the Act. After careful consideration of the submissions and perusing the materials available on record, the Tribunal had come to a conclusion that the Guarantor Smt. Meenakumari.R has not disputed her signature appearing on the documents filed by the defendants. All these questions would be considered at the time of hearing of the SA. The question raised by the applicant was not decided conclusively at the stage of hearing of the IA which would be considered at the time of hearing of the SA O.P(DRT) No.234 of 2023

on merit. Accordingly it was held that there is no merit in the contentions put forth by the applicant in IA No.1094/2023 and hence the same was rejected as per the impugned order dated 11.04.2023. Merely because some additional documents filed with a memo dated 10.04.2023 were not referred; it cannot be said that there is apparent error in the impugned order to invoke the power of review.

(emphasis given)

11. On an analysis of the findings of the

Tribunal in Exts.P16 and P21 orders, it undoubtedly

establishes that the Tribunal has only deferred the

question regarding the genuineness of Exts.P10 and

P10A declarations purportedly signed by

Meenakumari.R with the determination of the

securitisation application. The Tribunal has in

unequivocal terms held that it would consider the

said question at the time of consideration of S.A.

12. In addition to the above, I also find

sufficient force in the contention of Sri.Sunil Shanker

that, if Meenakumari.R has a case that her

signatures are forged on Exts.P10 and P10A, it is for O.P(DRT) No.234 of 2023

her to come forward and put up such a plea.

Nonetheless, I am of the view that the petitioner

can always raise the said contention, so far as when

recovery proceedings are initiated against the

properties covered by the alleged forged

declarations, but subject to the condition that

Meenakumari establishing and proving that she has

not executed the declarations as sworn by her in

Ext.P13 affidavit. If the petitioner can shift the initial

onus of proof and prima facie prove its case on the

said point then Tribunal would be at liberty to

exercise its powers under Section 73 of the Indian

Evidence Act, 1872 and compare the signatures on

Exts.P10, P10A and P12. If the Tribunal is convinced

and satisfied of the case putforth by the petitioner,

then the Tribunal may, in its discretion, refer the

disputed document for expert opinion.

13. It is to be remembered that the expert

opinion is one of the weakest forms of evidence, O.P(DRT) No.234 of 2023

which is only to be accepted with due care and

circumspection.

14. It is trite; that the supervisory powers of

this Court is not to correct every error of fact or

even a legal flaw. The power under Article 227 of

the Constitution of India is to be exercised sparingly

and only in appropriate cases, to keep the

Courts/Tribunals within their bounds of its authority

and avoid miscarriage of justice.

15. As already observed, since the Tribunal has

only deferred the decision to consider the question

as to whether Exts.P10 and P10A declarations are

forged or not, I do not find any error or illegality in

the in the impugned orders warranting interference

by this Court under Article 227 of the Constitution of

India.

Resultantly, the original petition is disposed of,

directing the Tribunal to consider the dispute raised

by the petitioner regarding the signatures of O.P(DRT) No.234 of 2023

Meenakumari.R on Exts.P10 and P10A declarations,

at the appropriate stage and at the discretion of the

Tribunal.

Sd/-C.S.DIAS JUDGE ma/17.6.2023 O.P(DRT) No.234 of 2023

APPENDIX OF OP (DRT) 234/2023

PETITIONER EXHIBITS Exhibit P1 TRUE PHOTOCOPY OF THE DEMAND NOTICE DATED 10/08/2021 STATED TO BE UNDER SECTION 13(2) OF THE SARFAESI ACT BY THE 2ND RESPONDENT Exhibit P2 TRUE PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE MANAGING PARTNER OF THE PETITIONER DATED 8.10.2021 Exhibit P3 TRUE PHOTOCOPY OF THE REPLY SENT BY THE SECOND RESPONDENT DATED 26.10.2021 Exhibit P4 TRUE PHOTOCOPY OF THE POSSESSION NOTICE ISSUED BY THE SECOND RESPONDENT DATED 01.01.2022 ALONG WITH ITS TYPED COPY Exhibit P5 TRUE PHOTOCOPY OF THE IA 48 OF 2023 IN SA 90 OF 2022 DATED 05/01/2023 FILED BEFORE DRT 2 ERNAKULAM .

Exhibit P6 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED IN IA 48 OF 2023 IN SA 90 OF 2022 DATED 10/01/2023 Exhibit P7 TRUE PHOTOCOPY OF THE TWO PHOTOGRAPHS OF THE CARDAMOM CULTIVATION IN PAGE 14 OF THE MEMO DATED 16.01.2023 Exhibit P8 TRUE PHOTOCOPY OF THE PAGE 22 OF THE MEMO DATED 16/01/2023 RELATING TO 2 PHOTOGRAPHS OF THE NUTMEG PLANTATION Exhibit P9 TRUE PHOTOCOPY OF THE PHOTOGRAPHS IN PAGE 37 OF THE MEMO DATED 16/01/2023.

Exhibit P10 TRUE PHOTOCOPY OF THE DECLARATION SAID TO HAVE BEEN MADE BY MRS.

MEENAKUMARI R DATED 12.03.2018 Exhibit 10A TRUE PHOTOCOPY OF THE DECLARATION SAID TO HAVE BEEN MADE BY MRS.

MEENAKUMARI R DATED 13.03.2018 ALONG WITH ITS TYPED COPY O.P(DRT) No.234 of 2023

Exhibit P11 TRUE PHOTOCOPY OF THE SANCTION LETTER DATED 13.11.2017 CONTAINING THE ADMITTED SIGNATURE OF MEENAKUMARI R Exhibit P12 TRUE PHOTOCOPY OF THE ADMITTED AND FORGED SIGNATURES OF MRS.

MEENAKUMARI R Exhibit P13 TRUE PHOTOCOPY OF THE AFFIDAVIT SWORN BY MRS. MEENAKUMARI R. DATED 04/04/2023 BEFORE THE NOTARY Exhibit P14 TRUE PHOTOCOPY OF THE IA 1094 OF 2023 IN SA 90 OF 2022 DATED 23/03/2023 FILED BEFORE DRT 2 ERNAKULAM Exhibit P15 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED IN IA 1094 OF 2023 IN SA 90 OF 2022 DATED 31/03/2023 Exhibit P16 TRUE PHOTOCOPY OF THE PROCEEDINGS IN SA 90 OF 2022 DATED 11/04/2023 DOWNLOADED FROM THE OFFICIAL DEBTS RECOVERY TRIBUNAL WEBSITE Exhibit P17 TRUE PHOTOCOPY OF THE IA 1406 OF 2023 IN SA 90 OF 2022 DATED 26/04/2023 FILED BEFORE DRT 2 ERNAKULAM Exhibit P18 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED MAY 2023 FILED IN IA 1406 OF 2023 IN SA 90 OF 2022 Exhibit P19 TRUE PHOTOCOPY OF THE IA 1407 OF 2023 IN SA 90 OF 2022 DATED 26/04/2023 FILED BEFORE DRT 2 ERNAKULAM Exhibit P20 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED MAY 2023 FILED IN IA 1407 OF 2023 IN SA 90 OF 2022 Exhibit P21 TRUE PHOTOCOPY OF THE ORDER PASSED BY HON'BLE DRT DATED 19/05/2023 DISMISSING THE REVIEW PETITIONS