Roy K.S vs Biju George
2023 Latest Caselaw 3836 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
     THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                        OP (DRT) NO. 112 OF 2023

ARISING OUT OF THE ORDER DATED 8.3.2023 AS UPLOADED ON 10.03.2023
IN I.A.2979/2022 AND I.A. NO.631/2023 IN S.A.NO.554 OF 2022 ON THE
       FILES OF THE DEBTS RECOVERY TRIBUNAL- II, ERNAKULAM

PETITIONER/APPLICANT:

          ROY K.S.
          AGED 47 YEARS
          S/O SCARIA, KONGUMPUZHAKALAYIL HOUSE,
          ONAMTHURUTH VILLAGE, MOOZHIKULANGARA P.O.,
          KURUMULLOOR KARA, KOTTAYAM TALUK,
          KOTTAYAM DISTRICT, PIN - 686 601

          BY ADVS.
          V.N.SANKARJEE
          V.N.MADHUSUDANAN
          R.UDAYA JYOTHI
          M.M.VINOD
          MURALEEDHARAN.C.
          M.SUSEELA
          KEERTHI B. CHANDRAN
          VIJAYAN PILLAI P.K.
          C.PURUSHOTHAMAN NAIR
          NITHEESH.M
          SUKANYA S.



RESPONDENTS/DEFENDANTS:

    1     BIJU GEORGE
          AGED 50 YEARS
          S/O GEORGE, THOTTATHIL HOUSE,
          ETTUMANOOR VILLAGE AND POST,
          KOTTAYAM TALUK,
          KOTTAYAM DISTRICT, PIN - 686 631

    2     THE SOUTH INDIAN BANK LTD.
          KOTHANALLOOR BRANCH,
          KOTHANALLOOR P.O.,
          VAIKOM TALUK,
          KOTTAYAM DISTRICT, PIN - 686 632
 OP (DRT) NO. 112 OF 2023
                                2

    3     THE REGIONAL MANAGER
          SOUTH INDIAN BANK LTD, 1ST FLOOR,
          REGENCY SQUARE, K.K. ROAD, COLLECTORATE P.O.,
          KOTTAYAM DISTRICT, PIN - 686 002

    4     THE AUTHORISED OFFICER
          SOUTH INDIAN BANK LTD., 1ST FLOOR,
          REGENCY SQUARE, K.K. ROAD, COLLECTORATE P.O.,
          KOTTAYAM DISTRICT, PIN - 686 002

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




     THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION
ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP (DRT) NO. 112 OF 2023
                                      3



                            T.R.RAVI, J.
                     ----------------------------------------
                      OP (DRT) No.112 of 2023
                   -------------------------------------------
              Dated this the 30th day of March, 2023

                           JUDGMENT

The petitioner claims to be a person who is entitled to

get a sum of Rs.33 lakhs together with interest from the 1 st

respondent, who in turn has borrowed amounts from the 2 nd

respondent Bank after creating an equitable mortgage of his

property. The mortgage has been created on 30.07.2019 and

the petitioner in the writ petition has obtained an order of

attachment over the very same property subsequently. The

prayer in the original petition is to set aside Ext.P3 sale

notice. Since the petitioner is also claiming amounts from the

1st respondent, there is no rationale in challenging the sale

notice published at the instance of the 2 nd respondent Bank.

The right of the petitioner, if adjudicated in his favour is only

to claim the amounts from the proceeds of the sale after the

debt of the 2nd respondent is satisfied. As such, the petitioner

has to await the result of the sale, as well as, get a decree in

the suit, before making a claim against any excess amount OP (DRT) NO. 112 OF 2023

that may be received on sale, over and above the mortgaged

debt. The original petition to that extent is ill conceived.

The original petition is hence disposed of directing the

petitioner to move the Debt Recovery Tribunal as well as the

concerned Civil Court for having his rights crystallised in the

form of a decree. The counsel for the 2 nd respondent

submitted that the sale which was proposed has not been

taken place and fresh proceedings will have to be initiated.

The petitioner herein may hence make his claims as and

when fresh sale proceedings are initiated and completed and

get the amounts due to them secured in a manner known to

law. It is made clear that this Court is not making any

observation regarding the rights or liabilities of the 1 st

respondent in the original petition.

Sd/-

T.R.RAVI

JUDGE sn OP (DRT) NO. 112 OF 2023

APPENDIX OF OP (DRT) 112/2023

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE SECURITIZATION APPLICATION DATED 25.10.2021 ON THE FILE OF THE DEBTS RECOVERY TRIBUNAL-II, ERNAKULAM WITH ANNEXURES

Exhibit P2 TRUE COPY OF I.A. NO. 2979 OF 2022 DATED 25.10.2021 IN S.A. NO. 554 OF 2022 ON THE FILE OF THE DEBTS RECOVERY TRIBUNAL-II ERNAKULAM

Exhibit P3 TRUE COPY OF SALE NOTIFICATION DATED 1.2.2023 ISSUED BY THE 4TH RESPONDENT AS PUBLISHED IN MALAYALA MANORAMA DATED 3.2.2023 KOTTAYAM EDITION

Exhibit P4 TRUE COPY OF I.A. NO. 631 OF 2023 DATED 19.2.2023 IN S.A. NO. 554 OF 2022 ON THE FILE OF THE DEBTS RECOVERY TRIBUNAL-II, ERNAKULAM

Exhibit P5 TRUE COPY OF I.A. NO. 632 OF 2023 DATED 19.2.2023 IN S.A. NO. 554 OF 2022 ON THE FILE OF THE DEBTS RECOVERY TRIBUNAL-II ERNAKULAM

Exhibit P6 TRUE COPY OF I.A. NO. 630 OF 2023 DATED 19.2.2023 IN S.A. NO. 554 OF 2022 ON THE FILE OF THE DEBTS RECOVERY TRIBUNAL-II ERNAKULAM

Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 3.3.2023 IN O.P.

(DRT) NO. 93/2023 OF THIS HONOURABLE COURT

Exhibit P8 TRUE COPY OF THE COUNTER AFFIDAVIT OF RESPONDENTS 2 TO 4 IN S.A. NO. 554/2022 OF THE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM

Exhibit P9 TRUE COPY OF THE ORDER DATED 8.3.2023 AS UPLOADED ON 10.3.2023 IN I.A. NO. 2979/2022 AND I.A. NO. 631/2023 IN S.A. NO. 554/2022 OF THE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM

RESPONDENT'S EXHIBITS : NIL

//TRUE COPY// PA TO JUDGE