Suresh Kumar P K vs Debts Recovery Appellate ...
2023 Latest Caselaw 6852 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
    THURSDAY, THE 22ND DAY OF JUNE 2023 / 1ST ASHADHA, 1945
                      OP (DRT) NO. 154 OF 2023
  IN AIR 458/2022 OF DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI
PETITIONER:

          SURESH KUMAR P K
          AGED 55 YEARS
          PALAKKOT HOUSE, MANEEDU P.O, PIRAVOM, ERNAKULAM
          DISTRICT, KERALA, PIN - 686726

          BY ADVS.      C.S.MANU
                        DILU JOSEPH
                        C.A.ANUPAMAN
                        T.B.SIVAPRASAD
                        C.Y.VIJAY KUMAR
                        MANJU E.R.
                        ANANDHU SATHEESH
                        ALINT JOSEPH


RESPONDENTS:

    1     DEBTS RECOVERY APPELLATE TRIBUNAL
          SHASTRI BHAVAN, DEBT RECOVERY APPELLATE TRIBUNAL,
          DRAT, 7TH FLOOR, ADDITIONAL,
          HADDOWS RD, CHENNAI, PIN - 600006

    2     THE MANAGER, INDIAN BANK
          EAST NADA, KODUNGALLOORE, THRISSUR DISTRICT, KERALA,
          PIN - 680664

    3     DASCO ELECTRICALS PROPRIETOR,
          SMT. M.B. JAGADAMMA
          W/O KOTTARATHIL KABEER DAS,
          DOOR NO.11/78, PATTALAM ROAD,
          KOCHI, KERALA, PIN - 682001

    4     M.B.JAGADAMMA
          W/O KOTTARATHIL KABEER DAS,
          DOOR NO.11/78, PATTALAM ROAD,
          KOCHI, KERALA, PIN - 682001

    5     K.R. KABEER DAS
          S/O RAMAN, DOOR NO.11/78,
 O.P(DRT)No.154/2023

                                 -:2:-




              PATTALAM ROAD, KOCHI,
              KERALA, PIN - 682001


OTHER PRESENT:

              SRI S EASWARAN

      THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 22.06.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 O.P(DRT)No.154/2023

                                       -:3:-




                      Dated this the 22nd day of June,2023

                             JUDGMENT

The original petition is filed challenging Ext P4

order passed by the Registry of the Debt Recovery

Appellate Tribunal, Chennai.

2. The brief relevant facts for the determination

of the original petition are:

2.1 Challenging an order of attachment effected

over the petitioner's property by the second

respondent - Bank, in the execution of a Debt Recovery

Certificate No.247/1B in O.A.No.99/2001, the petitioner

had preferred a claim petition before the Recovery

Officer. Although the claim petition was registered as

I.A.No.2253/2010, the Recovery Officer dismissed the

same.

2.2. Aggrieved by the order of dismissal, the

petitioner preferred an appeal before the Debt O.P(DRT)No.154/2023

Recovery Tribunal-1, Ernakulam, as Appeal No.4/2011.

However, the appeal was also dismissed. Challenging

the said order of dismissal, the petitioner preferred Ext

P2 appeal before the Debt Recovery Appellate Tribunal

on 23.12.2022. The Registry of the Appellate Tribunal

after noting certain defects, as reflected in Ext P3(a),

by Ext.P5 order, rejected the appeal.

2.3 Exts P4 & P5 are illegal and passed in

egregious violation of the provisions of the Debt

Recovery Appellate Tribunal Act & Rules framed

thereunder. Hence, the original petition.

3. Heard; Sri. C.S.Manu, the learned counsel

appearing for the petitioner and Sri. S.Easwaran., the

learned Standing Counsel appearing for the

respondents 1 & 2. In view of the judgment that I

propose to pass, I dispense with notice to the

respondents 3 & 4.

4. The short point is whether there is any O.P(DRT)No.154/2023

illegality in Exts P3 & P5 orders?.

5. In Ext.P2 appeal filed by the petitioner before

the Appellate Tribunal, its Registry had noted eight

defects as reflected in Ext P3.

6. Rule 6 of the Debt Recovery Appellate

Tribunal(Procedure Rules), 1994(in short 'Rules), reads

as follows:

6. Presentation and scrutiny of memorandum of appeal. - (1) The Registrar shall endorse on every appeal the date on which it is presented under rule 5 or deemed to have been presented under that rule and shall sign endorsement.

(2) If, on scrunting, the appeal is found to be in order, it shall be duly registered and given a serial number.

3) If an appeal on scrutiny is found to be defective and the defect noticed is formal in nature, the Registrar may allow the appellant to rectify the same in his presence and if the said defects is not formal in nature, the Registrar, may allow the appellant such time to rectify the defects as he may deem fit.

4)If the concerned appellant fails to rectify the defect within the time allowed in subrule (3), the Registrar may by order and for reasons to be recorded in writing, decline to register such memorandum of appeal.

5)An appeal against the order of the Registrar under sub-

O.P(DRT)No.154/2023

rule (4) shall be made within fifteen days of making of such order to the [Chairperson] concerned in his chamber, whose decision thereon shall be final.

[emphasis supplied]

7. A plain reading of Rule 6(3) of the Rules

demonstrates that the appellant can either cure or

answer the defects noted by the Registry. If the

Registry upholds the defects, then the appellant has a

right of appeal, under Rule 6(5) of the Rules before the

Appellate Tribunal, within 15 days.

8. In the instant case, admittedly, the petitioner

has not answered defect No.4 in Ext P3 proceedings.

Instead, he has rushed to this Court under Article 227

of the Constitution of India, on the ground that the

defect No.4 is unsustainable in law.

9. During the interregnum, the Registry has

rejected the appeal under Rule 6(4). I do not find any

error in the procedure adopted by the Registry of the

Appellate Tribunal, which is fully in consonance with O.P(DRT)No.154/2023

the above extracted Rules.

10. If the petitioner had a definite case that he

need not pay the requisite court fee under Rule 8 of the

Recovery of Debts and Bankruptcy Act, 1993, certainly,

it was up to him to have answered the defect and

canvassed the above position before the Registry,

instead of maintaining stoic silence and then

approaching this Court under Article 227 of the

Constitution of India.

11. It is trite, the power of superintendence of

this Court is to be sparingly exercised and only to keep

the Courts/Tribunals within their bounds of authority,

that too when there is a patent illegality or perversity

in the action of the Tribunal.

12. Here, not only does the petitioner have an

alternative statutory remedy, but also he has failed to

answer the defect that was noted by the Registry in Ext

P3. This Court does not find any manifest error or O.P(DRT)No.154/2023

illegality to invoke the supervisory powers of this Court

under Article 227 of the Constitution of India.

13. Nonetheless, I am of the definite view, to do

complete justice to both sides, and to grant the

petitioner one more opportunity to contest the appeal

on its merits, the petitioner is to be permitted to

answer defect No.4 in Ext P3 and if he is still

aggrieved, he be granted an opportunity to take up the

matter in appeal as contemplated under Rule 6(5) of

the Rules. Thus, I am inclined to set aside Ext.P5

order, and restore the appeal to permit the petitioner

to answer defect No.4 in Ext. P3.

Resultantly, I order the original petition as follows:

(i) The petitioner's prayer to set aside Ext P3 is rejected.

(ii) Ext P5 order is set aside.

(iii) The Registry of the Appellate Tribunal shall grant the petitioner an opportunity to answer O.P(DRT)No.154/2023

defect No.4 in Ext P3.

(iv) The petitioner shall appear before the Registry of the Appellate Tribunal within 10 days from the date of receipt of a certified copy of this judgment, and offer his explanation to the above defect on or before 05.07.2023.

(v) The Registry of the Appellate Tribunal shall take a decision on defect No.4 in Ext P3, after adverting to the contentions of the petitioner, in accordance with law and as expeditiously as possible.

(vi) If the Registry upholds its defect, then the petitioner would be at liberty to invoke Rule 6(5) of the Rules.

Sd/-

                                        C.S.DIAS,JUDGE

DST/22.06.23                                         //True copy//

                                                     P.A.To Judge
 O.P(DRT)No.154/2023






                             APPENDIX

PETITIONER EXHIBITS
EXHIBIT P1          A TRUE COPY ORDER DATED 31-10-2022 IN

APPEAL NO. 04/2011 PASSED BY THE DEBTS RECOVERY TRIBUNAL-I, ERNAKULAM

EXHIBIT P2 A TRUE COPY OF THE APPEAL BEARING NO. AIR 458 OF 2022 EXCLUDING THE ANNEXURES THERETO

EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS DATED 23-12-

2022 NOTING THE DEFECTS IN EXT.P-2 APPEAL

EXHIBIT P3(A) A TYPED VERSION OF THE PROCEEDINGS DATED 23-12-2022 NOTING THE DEFECTS IN EXT.P-2 APPEAL

EXHIBIT P4 A TRUE COPY OF THE RECEIPT 08-12-2022 ISSUED FROM THE BHARATHKOSH.GOV.IN WEBSITE TO THE PETITIONER

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 28/03/2023 PASSED BY THE REGISTRAR, DRAT, CHENNAI

RESPONDENT EXHIBITS: NIL