Kerala High Court
Wadakkanchery Silk Garden ... vs The Kerala State Co-Operative ... on 24 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
OP (DRT) NO. 360 OF 2022
AGAINST THE ORDER IN IA 1261/2022 IN SA 315/2022 OF DEBT RECOVERY
TRIBUNAL-I, ERNAKULAM
PETITIONER:
JIMMY THOMAS,
AGED 49 YEARS
S/O THOMAS, RESIDING AT NAMBIARPARAMBIL HOUSE, NEAR
SADHOO COMPANY, KANNOTHUMCHAL, CHOVVA.P.O, KANNUR.,
PIN - 670006
BY ADVS.
P.BINOD
A.S.DILEEP
SUSEELA DILEEP
SUDEEP ARAVIND PANICKER
RESPONDENT:
INDIAN BANK,
SOUTH BAZAR BRANCH,KVR TOWER, SOUTH
BAZAR,KANNUR,REPRESENTED BY AUTHORISED OFFICER, INDIAN
BANK ZONAL OFFICE, KOZHIKODE., PIN - 670001
BY ADV S.EASWARAN
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
24.05.2023, ALONG WITH OP (DRT).438/2022 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(DRT)No.360 of 2022 & conn.cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
WP(C) NO. 31891 OF 2022
PETITIONERS:
1 M/S. JIS INTERNATIONAL EXPORTS PVT. LTD.
28/60,FIRST FLOOR,G G-107, PANAMPILLY NAGAR,
ERNAKULAM-,REP.BY ITS DIRECTOR,DOMINIC SEBASTIAN, PIN
- 682036
2 DOMINIC SEBASTIAN
AGED 66 YEARS
S/O. SEBASTIAN MATHEW PAN:AEMPS1155G.15EIRDS AVENUE
ONE,PANAMPILLY NAGAR ERNAKULAM, PIN - 682036
3 MS. GEENA DOMINIC
AGED 58 YEARS
W/O. DOMINIC SEBASTIAN PAN:ACZPD6511C,15EL-RDS AVENUE
ONE, PANAMPILLY NAGAR, ERNAKULAM., PIN - 682036
4 M/S ALLIANCE MARITIME PVT. LTD
CINU 63090KL 1999PTC012787 28/60,A-I,1ST FLOOR G-
107,PANAMPILLY NAGAR, ERNAKULAM. REPRESENTED BY ITS
DIRECTOR M. DOMINIC SEBASTIAN, PIN - 682036
BY ADV C.S.ULLAS
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY MINISTRY OF FINANCE NEW
DELHI, PIN - 110001
2 THE REGISTRAR
DEBT RECOVERY TRIBUNAL -1,ERNAKULAM , 5 TH FLOOR, KSHB
BUILDING PANAMPILLY NAGAR, ERNAKULAM, PIN - 682036
3 INDIAN OVERSEAS BANK
CENTRAL OFFICE, 6 TH FLOOR, ANNEX BUILDING,763,ANNA
SALAI,CHENNAI-, TAMILNADU, REPRESENTED BY ITS CHAIRMAN
& MANAGING DIRECTOR, PIN - 600002
O.P.(DRT)No.360 of 2022 & conn.cases 3
4 INDIAN OVERSEAS BANK
ERNAKULAM MAIN BRANCH M.GROAD, ERNAKULAM REP.BY
AUTHORISED OFFICER AND ASST. GENERAL MANAGER MR.S.
PALANIVEL, PIN - 682015
BY ADVS.
Sunil Shankar A (SC)
VIDYA GANGADHARAN(K/000424/2020)
SANDHRA.S(K/001610/2021)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.05.2023, ALONG WITH OP (DRT).438/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(DRT)No.360 of 2022 & conn.cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
OP (DRT) NO. 438 OF 2022
AGAINST THE ORDER DATED 18.8.2022 IN IA 1671/2022 IN SA 79/2022
OF DEBT RECOVERY TRIBUNAL-1, ERNAKULAM
PETITIONER:
MR. CHACKO T.C
AGED 46 YEARS
S/O CHACKO, THULAMATTATHIL HOUSE, AVOLY P.O ANICADU,
MUVATTUPUZHA, ERNAKULAM, PIN - 686670
BY ADV S.S.ARAVIND
RESPONDENT:
AUTHORIZED OFFICER, THE KERALA STATE CO-OPERATIVE
BANK,PERUMBAVOOR MAIN BRANCH, YATHRI NIVAS SHOPPING
COMPLEX, AM ROAD, PERUMBAVOOR, ERNAKULAM, PIN - 683542
BY ADV N.RAGHURAJ -SC
OTHER PRESENT:
SRI. P C SASIDHARAN , SRI. SUNIL SHANKAR (SC),
SRI. S EASWARAN (SC)
SRI.N. RAGHURAJ -SC
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 24.05.2023, ALONG WITH OP (DRT).360/2022,
31891/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(DRT)No.360 of 2022 & conn.cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
OP (DRT) NO. 486 OF 2022
AGAINST THE ORDER DATED 21.11.2022 IN IA 2838/2022 IN SA
536/2022 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM
PETITIONERS:
1 WADAKKANCHERY SILK GARDEN PRIVATE LIMITTED,
MAIN ROAD, WADAKKANCHERY, TRICHUR DISTRICT,KERALA,
REPRESENTED BY ITS MANAGING DIRECTOR,
K.H.KAMALUDHEEN., PIN - 680582
2 K.H.KAMALUDHEEN,
AGED 50 YEARS
SIO MHASSANAR,KEERIYAMPARAMBIL.HOUSE, PAVARATTY.P.O,
TRICHUR DISTRICT, KERALA., PIN - 680507
3 P.A.KAMALUDDIN
AGED 60 YEARS
S/O ABDULRAHIMAN,POKKAKKILATH HOISE,
CHAKKAMKANDAM.P.O, TRICHUR DISTRICT, KERALA., PIN -
680522
4 STEPHEN,
AGED 55 YEARS
S/O, JOSEPH,CHIRAYAMKANDATH HOUSE, GURUVAYOOR.P.O,
TRICHUR DISTRICT, KERALA., PIN - 680101
5 FATHIMA,
AGED 41 YEARS
W/O KAMALUDHEEN, KEERIYAMPARAMBIL.HOUSE,
PAVARATTY.P.O,TRICHUR DISTRICT, KERALA., PIN - 680507
BY ADVS.
A.S.DILEEP
K.K.CHANDRAN PILLAI (SR.)(C-41)
P.BINOD
SUSEELA DILEEP
K.Y.SUDHEENDRAN
SUDEEP ARAVIND PANICKER
O.P.(DRT)No.360 of 2022 & conn.cases 6
RESPONDENT/S:
THE KERALA STATE CO-OPERATIVE BANK LTD,
SAHAKARANA SATHABDHI MANDIRAM,TUDA ROPAD,
KOVILAKATHUPADAM, THIRUVAMBADY .P.O, THRISSUR,
KERALA , REPRESENTED BT AUTHORISED OFFICER., PIN -
680002
BY ADV P.C.SASIDHARAN
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
24.05.2023, ALONG WITH OP (DRT).438/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(DRT)No.360 of 2022 & conn.cases 7
(CR)
O.P (DRT) No.360 of 2022, W.P (C) No. 31891/2022,
O.P (DRT) No. 438 of 2022 and O.P (DRT) No. 486/2022
JUDGMENT
These cases have been filed, challenging the interim orders of
the Debts Recovery Tribunal (hereinafter referred to as 'the
Tribunal') in separate Securitisation Applications filed under Section
17 of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to
as 'the Act' or as the 'SARFAESI Act'). The petitioners contend that
the Tribunal mechanically issued orders on the interlocutory
applications filed in the respective Securitisation Applications
without paying any heed to the contentions raised, and completely
disregarding the well-settled principles governing the consideration
of an application for ad-interim relief. It is contended in the main
that there is a gross failure to exercise a jurisdiction vested in the
Tribunal properly, warranting this Court's interference.
2. I have heard Sri. K.K Chandran Pillai, Learned Senior
Advocate, and Advocates Sri. P.Binod, Sri. C.S Ullas and Sri. S.S
Aravind for the Petitioners in these cases and Sri. P.C Sasidharan,
O.P.(DRT)No.360 of 2022 & conn.cases 8
Sri.S.Easwaran and Sri Sunil Shankar for the contesting respondents
(Banks/the Financial Institutions).
3. It is not necessary to examine the merits of the
contentions raised before the Tribunal, in any great detail, for the
consideration of the issue arising in these cases. However those
contentions are to be noticed, in brief, only to consider whether there
was non-application of mind and a failure by the Tribunal to exercise
the jurisdiction vested in it in a proper and judicious manner. The
contentions (in brief) raised before the Tribunal in each of these
cases are set out below:-
(i) O.P (DRT) No.360/2022 (S.A. No. 315/2022 before the
Tribunal)
The petitioner in O.P (DRT) No.360 of 2022 availed a cash
credit facility from the Indian Bank. On default being
committed in the repayment of amounts due to the bank,
proceedings were initiated against the petitioner under the
provisions of the Act. When steps were initiated to take
physical possession of the secured asset (residential property
of the petitioner), the petitioner approached the Debts
Recovery Tribunal by filing a Securitisation Application under
O.P.(DRT)No.360 of 2022 & conn.cases 9
Section 17 of the Act. The petitioner also applied for a stay of
further proceedings. The petitioner had raised four
contentions before the Tribunal; (a) That the account of the
petitioner was not a non-performing asset at the time when
the demand notice was issued, and therefore, the condition
precedent for issuing a demand notice under Section 13(2) of
the SARFAESI Act had not been satisfied; (b) Non-
compliance with the procedure contemplated by sub-section
3A of Section 13 of the Act; (c) That the proceedings under
the SARFAESI Act could not be initiated or continued against
the petitioner for failure to register the security interest as
provided under Section 26D of the SARFAESI Act; and (d)
That the affidavit supporting the application filed before the
Chief Judicial Magistrate Court, Thalassery under Section 14
of the Act was not legal or proper.
(ii) W.P (C)No. 31891/2022 (S.A No.224/2021 before the
Tribunal)
The petitioners availed a cash credit facility as also a working
capital term loan from the Indian Overseas Bank. On default
being committed, proceedings were initiated against the
O.P.(DRT)No.360 of 2022 & conn.cases 10
petitioners prompting the petitioners to file S.A.No.224/2021
before the Tribunal. The petitioners inter alia contend before
the Tribunal that the claim of the Bank is barred by
limitation; that the proceedings under the Act are bad for the
reason that there is no registration with the Central Registry
as provided in Section 26D of the Act and that there is a
violation of the procedure contemplated by the Act and the
Rules framed thereunder in the proceedings initiated against
the petitioners.
(iii) O.P(DRT) No. 438/2022 (S.A No. 79/2022 before the
Tribunal)
The petitioner availed of two loans for agricultural purposes.
The petitioner inter alia contends before the Tribunal that the
proceedings are barred by limitation; that there was no
creation of mortgage over the property in question; that the
properties which are the subject matter of the proceedings are
agricultural lands (in substantial part) and therefore no
proceedings can be initiated against those lands, under the
provisions of the Act.
(iv) O.P (DRT) No. 486/2022 (S.A No.536/2022 before
the Tribunal)
O.P.(DRT)No.360 of 2022 & conn.cases 11
The 1st petitioner availed an overdraft facility from the Kerala
State Co-operative Bank Limited. The 2 nd petitioner had
mortgaged his property to secure the repayment of the loan.
Petitioners 2, 5 and 6 had also executed personal guarantees
in respect of the said facility. Petitioners 2, 3 and 5 had
availed of three other loans by offering other items of
property as security for repayment of the loans. On default
being committed in the repayment of the aforesaid loans,
proceedings were initiated against the petitioners under the
provisions of the Act, prompting the petitioners to approach
the Tribunal by filing S.A.No.536/2022. The petitioners inter
alia contend, that there is no enforceable security interest at
least in respect of two of the items of properties, the physical
possession of which is sought to be taken under the
provisions of the SARFAESI Act; that in respect of an item of
property which is the subject matter of the proceedings under
the Act, only undivided half share is mortgaged; that the
demand notice under sub-section (2) of Section 13 has been
served only on one of the borrowers as is clear from Ext.P9;
that there was no registration with the Central Registry as
O.P.(DRT)No.360 of 2022 & conn.cases 12
mandated by the provisions of Section 26D of the Act; that
the Advocate Commissioner is seeking to take possession of a
property other than the one that is directed to be taken
possession, in the proceedings under Section 14 of the
SARFAESI Act; that the affidavit filed in proceedings under
Section 14 of the Act does not meet the requirements of the 1 st
proviso to Section 14 of the Act; that the officer who initiated
the proceedings is not competent to act as an authorised
officer under the provisions of the Act and that there was no
reply given to the objection filed under Section 13 (3A) of the
Act.
4. O.P (DRT) No.360 of 2022, W.P (C) No. 31891/2022 and
O.P (DRT) No. 438 of 2022 challenge interim orders issued by the
Debts Recovery Tribunal -I at Ernakulam. The Tribunal has issued
identical orders (except for the amounts directed to be paid as a
condition for stay). The order under challenge in O.P (DRT) No.360
of 2022 (to the extent it purports to consider the application for
interim relief on merits) reads thus:-
''4. The availment of the loan by the petitioner and the
deposit of title deeds have been admitted by the petitioner.
The default in respect of repayment of the loan due has
also been admitted by the petitioner. Be that it may so, this
O.P.(DRT)No.360 of 2022 & conn.cases 13
Tribunal is of the considered view that without going into
the merits of the case one more opportunity has to be given
to the petitioner/Applicant to show their bona fides in
payment of the outstanding loan dues to the Respondent
Bank. Hence, Ad Interim stay is granted till 19.09.2022
with respect to the petition schedule mentioned property,
against the Respondent, subject to payment of
Rs.5,94,000/- directly to the Respondent Bank on or
before 20.08.2022 as 1st installment and another sum of
Rs.5,94,000/- directly to the respondent Bank on or before
19.09.2022 as 2nd installment. However, in the event of
failure to pay any one of the installments as ordered
above, the Respondent is at liberty to proceed further,
without making any reference to this Tribunal and the Ad-
Interim stay granted till 19.09.2022, against the
Respondent, shall stand vacated and the petition in I.A.
No.1261/2022 shall stand closed automatically. For filing
proof of payment by the Applicant, call on 20.09.2022.''
The order under challenge in W.P (C)No. 31891/2022 (to the extent
it purports to consider the application for interim relief on merits)
reads thus:-
"4. The availment of the loan by the petitioners and deposit
of title deeds have been admitted by the petitioners. The
default in respect of repayment of the loan due has also
been admitted by the petitioners. Be that it may so, this
Tribunal is of the considered view that without going into
the merits of the case one more opportunity has to be given
to the Petitioners/Applicants to show their bona fides in
payment of the outstanding loan dues to the 1 st Respondent
Bank. Hence, Ad Interim stay is granted till 07.09.2022
with respect to the petition schedule mentioned properties,
against the Respondents, subject to payment of
Rs.2,68,91,000/- directly to the 1st Respondent Bank on or
before 06.08.2022 as 1st installment and another sum of
Rs.2,68,91,000/- directly to the 1st Respondent Bank on or
before 07.09.2022 as 2nd installment. However, in the
event of failure to pay any one of the installments as
ordered above, the 1st Respondent is at liberty to proceed
further, without making any reference to this Tribunal
O.P.(DRT)No.360 of 2022 & conn.cases 14
and the Ad-Interim stay granted till 07.09.2022, against
the Respondents, shall stand vacated and the petition in
I.A No.868/2022 shall stand closed automatically. For
filing proof of payment by the Applicant, call on
09.09.2022."
The order under challenge in O.P (DRT) No. 438 of 2022 (to the
extent it purports to consider the application for interim relief on
merits) reads thus:-
"3. The availment of the loan by the petitioner has been
admitted by the petitioner. The default in respect of
repayments of the loan due has also been admitted by the
petitioner. Be that it may so, this Tribunal is of the
considered view that without going into the merits of the
case, one more opportunity has to be given to the
Petitioner/Applicant to show his bona fides in payment of
the outstanding loan dues to the Respondent Bank. Hence,
Ad Interim stay is granted till 17.10.2022 with respect to
the petition schedule mentioned property, against the
Respondent, subject to payment of Rs.10,87,248/- directly
to the Respondent Bank on or before 17.09.2022 as 1 st
instalment and another sum of Rs.10,87,248/- directly to
the Respondent Bank on or before 17.10.2022 as 2nd
installment. However, in the event of failure to pay any
one of the installments as ordered above, the Respondent
is at liberty to proceed further, without making any
reference to this Tribunal and the Ad-Interim stay granted
till 17.10.2022, against the Respondent, shall stand
vacated and the petition in IA No.1671/2022 shall stand
closed automatically. For filing proof of payment by the
Applicant, call on 18.10.2022."
O.P (DRT) No. 486 of 2022 has been filed challenging an order
passed on an application for interim relief by the DRT-II, Ernakulam.
The order under challenge in O.P (DRT) No. 486 of 2022 (to the
O.P.(DRT)No.360 of 2022 & conn.cases 15
extent it purports to consider the application for interim relief on
merits) reads thus:-
"3. On a careful consideration of the submission and
available materials, it appears that the applicants have
availed loan from the defendant bank by mortgaging their
properties described in the securitization application. As
per Annexures A14 and A14(a) possession notice was
issued by the defendant bank on 30.09.2020. The
properties described in the said notice in Item No.2 the
survey number is described as 64/2 which is similar to the
schedule mentioned in the SA. Merely because in the order
passed by the CJM; the said item No.2 is shown as in
survey No.664/2 in the item No.3 and the notice issued by
the advocate commissioner it cannot be said that there is
prima facie illegality or irregularity in the measures taken
by the defendant. The same may be typographical mistake
which is not fatal to the case. The contentions raised by the
applicants relate to the merit of the case which would be
considered at the time of hearing of the SA. Any opinion
about the merit of the case at this stage it would cause
prejudice to the either party. As the applicants failed to
establish any prima facie illegality or irregularity in the
SARFAESI measures; they do not deserve any indulgence
from this Tribunal. Hence in the absence of prima case
and keeping the quantum of outstanding due nearly Rs.7
Crores at present and the applicants having no interest to
repay the same, I am not inclined to stay the step taken by
the defendant for realization of the outstanding dues and
taking possession of the secured asset. Hence the
IA.No.2838/2022 filed by the applicants is hereby
rejected. List the SA on 04.01.2023 for filing written
statement by the defendant."
5. The learned counsel for the petitioners are ad-idem in
contending that the impugned orders in each of these cases reveal
non-application of mind and a total failure to consider the
applications for interim relief on the basis of the well-settled
O.P.(DRT)No.360 of 2022 & conn.cases 16
principles of (i) strong prima facie case; (ii) balance of
convenience and (iii) irreparable injury. It is submitted that these
principles must necessarily guide Courts/Tribunals in the matter of
granting or refusing interim relief. It is submitted that the
Securitisation Application before the Tribunal under Section 17 of
the SARFAESI Act is in the nature of original proceedings. Reliance
is placed in this regard on the judgment of the Supreme Court in
Mardia Chemicals Ltd. v. Union of India 1. It is submitted that
despite several contentions on merits being taken, the Tribunal
failed to consider the merits of the contentions. It is submitted that
the jurisdiction of the Tribunal under Section 17 of the SARFAESI
Act is limited to the examination of the question as to whether the
bank had strictly followed the mandate of the law by initiating and
continuing proceedings under the Act. It is submitted that when the
jurisdiction of the Tribunal under Section 17 of the SARFAESI Act is
in the manner indicated above, the Tribunal could not refuse to
consider the contentions on merits. It is submitted that the
jurisdiction vested with the Tribunal to grant interim relief is akin to
that vested with the Civil Court under the Code of Civil Procedure
and the principles that govern the grant of interim relief under the
1. (2004) 4 SCC 311
O.P.(DRT)No.360 of 2022 & conn.cases 17
Code are equally applicable to the proceedings before the Tribunal.
Reliance is placed on the judgment of the Bombay High Court in
Nimbus Communications Limited and Others v. Board of
Control for Cricket in India and Another 2, in support of this
contention. It is submitted that the Tribunal has not considered the
existence of any prima facie case, the balance of convenience or
irreparable injury, which are the principles which govern the grant of
interim relief. It is submitted that the Tribunal has failed to exercise
its jurisdiction vested under Section 17 of the SARFAESI Act. It is
submitted that since there is a failure to exercise jurisdiction, the
petitioners have approached this Court under Article 226/227 of the
Constitution of India. It is submitted that the alternative remedy of
appeal to the Debts Recovery Appellate Tribunal is not an efficacious
alternative remedy as the petitioner will be required to deposit a
considerable amount as a pre-condition for maintaining the appeal.
While the learned counsel for the petitioner in W.P(C) 31891 of 2022
would contend that the Tribunal has no power to impose any
condition while granting a stay and the stay is automatic, the
learned counsel appearing for the petitioners in the other cases
would submit that while the Tribunal has got the power to impose
2. 2013 1 MhLJ 39
O.P.(DRT)No.360 of 2022 & conn.cases 18
conditions for the grant of stay, the Tribunal has first to consider the
case put forth in the Securitisation Application on merits to find out
whether any prima facie case had been made out. It is submitted
that the Tribunal has to apply the principles of balance of
convenience and irreparable injury to determine whether a stay
should be granted. It is submitted that the failure of the Tribunal to
consider the merits of the contentions raised, at least for the purpose
of determining whether any prima facie case had been made out,
cannot be sustained in law. Reliance is placed on the judgment of a
Division Bench of this Court in X v. Dr.S and Anr3 to contend that
sans reason, a judicial order will not pass the test of fairness and
reasonableness. It is submitted that when the Tribunal fails to
exercise its jurisdiction vested in it in a proper manner, it is open to
this Court to interfere with such proceedings in the exercise of
jurisdiction under Article 227 of the Constitution of India. It is
submitted that Article 227 is a constitutional remedy which cannot
be affected in any manner by any alternative remedy available to the
petitioner under the statute. It is submitted that if the petitioners
were required to make a deposit of 50% of the amount claimed by
the bank as a condition for maintaining the appeal under Section 18
3. 2020 KHC 719
O.P.(DRT)No.360 of 2022 & conn.cases 19
of the SARFAESI Act against an order which did not even consider
any of the contentions raised on merits, the same would amount to
travesty of justice and therefore, the petitioner is entitled to maintain
this Original Petition under Article 227 of the Constitution of India.
Reliance is placed on the judgment of this Court in Vinu Thomas
v. South Indian Bank Ltd.4 to contend that while this Court may,
for good and sufficient reason, refuse to entertain a petition under
Article 227 of the Constitution of India when an alternate remedy is
available, it cannot be said that such a petition is not maintainable
and there is a substantial difference between 'maintainability' and
'entertainability'.
6. The learned counsel appearing for the petitioners in
W.P (C) 31891 of 2022, while supporting the contentions taken on
behalf of the petitioners in the connected cases, additionally
contends that the moment a Securitisation Application is filed, the
proceedings under the Act must automatically come to a stop, for it
is only when the Tribunal gives its stamp of approval to the
proceedings that it can go on. He submits with reference to the
provisions of sub-section (3) and (4) of Section 17 that it is only after
the Tribunal declares that the recourse taken by the secured creditor
4. 2023 (1) KLT 647
O.P.(DRT)No.360 of 2022 & conn.cases 20
under sub-section (4) of Section 13 is in accordance with the
provisions of the Act and the Rules thereunder, can the secured
creditor take recourse to the measures specified in sub-section (4) of
Section 13. It is submitted that a combined reading of sub-section (3)
and (4) of Section 17 indicates that, the moment a Securitisation
Application is filed under Section 17 of the Act, there is an automatic
stay of the proceedings. It is submitted that under sub-section (5) of
Section 17, the Securitisation Application filed under Section 17 has
to be disposed of within four months from the date of application. It
is submitted that at least for the aforesaid period of four months, the
proceedings initiated by the bank will have to be kept in abeyance. It
is submitted with reference to sub-section (7) of Section 17 that the
provisions of the Recovery of Debts and Bankruptcy Act, 1993 (the
'RDB Act') and the Rules made thereunder shall be applied to the
adjudication of applications made under Section 17. It is submitted
with reference to sub-section (25) of Section 19 of the RDB Act that
the Debts Recovery Tribunal has got the inherent power to make
such orders or give such directions as may be necessary or expedient
to give effect to its orders or to prevent abuse of its process or to
secure the ends of justice. It is submitted that sub-section (12) of
O.P.(DRT)No.360 of 2022 & conn.cases 21
Section 19 of the RDB Act, which empowered the Tribunal to grant
an interim order by way of injunction or stay or attachment against a
defendant, has been expressly taken away by the amendment with
effect from 04.11.2016. It is submitted that the finding in the
judgment of the Supreme Court in Mardia Chemicals (supra)
that the Tribunal will have the power under Section 17 to pass any
stay or interim order subject to any condition that it may deem fit
and proper to impose was rendered at a time when the provisions of
sub-section (12) of Section 19 of the RDB Act were in force and
therefore the said finding cannot be held to be the authority for the
proposition that the Tribunal has the power (while considering a stay
application in a proceeding under Section 17 of the SARFAESI Act)
to grant a stay subject to condition. He submits that since the power
to grant interim order by way of injunction, stay or attachment has
been expressly taken away by amendment with effect from
04.11.2016, the Tribunal has to fall back upon the provisions of Sub
Section (25) of Section 19 which refers to the inherent power of the
Tribunal and therefore, a conditional order of stay cannot be
granted. He submits that any order granting a stay subject to
conditions will defeat the rights of the borrower. He submits that the
O.P.(DRT)No.360 of 2022 & conn.cases 22
Supreme Court in Mardia Chemicals (supra) had struck down
the condition for a deposit of 75% of the amount of debt as a
condition for maintaining an application under Section 17 and
therefore it would be inappropriate to hold that conditions can be
imposed while granting an interim order in proceedings under
Section 17 of the Act. The learned counsel refers to the judgment of
the Supreme Court in Karnataka State Financial
Corporation v. N Narasimahaiah and others5, to contend
that the right of property, although no longer a fundamental right, is
still a constitutional right and a human right and in the absence of
any provision either expressly or by necessary implication, depriving
a person therefrom, the court shall not construe a provision leaning
in favour of such deprivation.
7. The learned counsel appearing for the contesting
respondents oppose the very maintainability of the petitions filed in
this Court. They are unanimous in contending that these petitions
are clearly not maintainable in the light of the principles laid down
by the Hon'ble Supreme Court in Punjab National Bank v. O.C.
5. (2008) 5 SCC 176
O.P.(DRT)No.360 of 2022 & conn.cases 23
Krishnan and Others6 as well as in Commissioner of Income
Tax and Others v. Chhabil Dass Agarwal7. It is submitted that
the jurisdiction vested in this Court under Article 226/227 of the
Constitution of India cannot be exercised in light of the alternative
remedy available to the petitioner under Section 18 of the SARFAESI
Act. It is submitted that in Punjab National Bank (supra),
there is a clear finding that the fast-track proceedings contemplated
by the provisions of the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 cannot be derailed by taking
recourse to proceedings under Articles 226/227 of the Constitution
of India. It is submitted that in Chhabil Dass Agarwal (supra),
the Supreme Court has clearly laid down the circumstances which
would enable this Court to exercise jurisdiction notwithstanding the
existence of alternative remedy. It is pointed out that no exceptional
circumstances exist for this Court to exercise jurisdiction under
Article 227 of the Constitution of India in the facts and circumstances
of these cases. Reliance is placed on the judgment of the Supreme
Court in K. Sreedhar v. M/s. Raus Constructions Private
Limited & Others8 to contend that when there is an effective
6. (2001) 6 SCC 569
7. (2014) 1 SCC 603
8. 2023 KLT OnLine 1007 (SC): 2023 SCC OnLine SC 10
O.P.(DRT)No.360 of 2022 & conn.cases 24
alternative remedy of appeal against the impugned orders, it is not
open to the petitioner to approach this Court by filing a petition
under Article 227 of the Constitution of India. It is also pointed out
that since the liability is not disputed, it is open to the Tribunal to
impose conditions while granting interim relief. It is submitted that
every order passed by the Tribunal either granting or refusing
interim relief, will be subjected to challenge under Article 226/227 of
the Constitution of India, notwithstanding the alternative remedy
available to the person aggrieved by such order if these petitions are
entertained.
8. I have considered the submissions of the learned counsel
on either side. I have also perused the pleadings as also the
judgments cited by counsel before me. O.P (DRT) No. 360 of 2022,
O.P (DRT) No. 438 of 2022 and O.P (DRT) No. 486 of 2022 have
been filed invoking the jurisdiction of this Court under Article 227 of
the Constitution of India and W.P (C) No. 31891 of 2022 has been
filed under Article 226 of the Constitution of India. It is settled that
the nomenclature under which a petition is filed is of no
consequence. (See Divine Retreat Centre v. State of Kerala
and others9 and M/s. Pepsi Foods Ltd. and another v.
9. (2008) 3 SCC 542
O.P.(DRT)No.360 of 2022 & conn.cases 25
Special Judicial Magistrate and others 10). I do not intend to
examine the merits of the contentions taken by the respective
petitioners before the Tribunal, and the only exercise being carried
out is the examination of the question as to whether the Tribunal had
exercised the jurisdiction vested in it under Section 17 of the Act in a
proper manner. Assuming that there was a failure by the Tribunal to
exercise a jurisdiction vested in it correctly, the examination of that
question must be under Article 227 & not under Article 226 of the
Constitution of India (see Radhey Shyam and another v.
Chhabi Nath and others11). Therefore, I treat W.P (C) No. 31891
of 2022 as a petition filed under Article 227 of the Constitution of
India.
Can the impugned orders of the Tribunal be questioned
under Article 227 of the Constitution of India, and if so,
should this Court refrain from exercising jurisdiction in
the light of the fact that the petitioners have an alternate
remedy of appeal before the Debts Recovery Appellate
Tribunal ?
9. In Waryam Singh and another v. Amarnath
and another12, a five judge bench of the Supreme Court held as
follows:-
10. (1998) 5 SCC 749
11. (2015) 5 SCC 423
12. AIR 1954 SC 215
O.P.(DRT)No.360 of 2022 & conn.cases 26
"11. Learned advocate appearing in support of this appeal
urges that the learned Judicial Commissioner acted wholly
without jurisdiction inasmuch as (1) the Rent Controller or
the District Judge exercising powers under the Act was not
amenable to the jurisdiction of the High Court and,
therefore, Article 227 confers no power on the Court of the
Judicial Commissioner over the Rent Controller or the
District Judge, and (2) that Article 227 read with Article
241 confers no power of judicial superintendence on the
Court of the Judicial Commissioner.
Re. 1.-- The Court of the Judicial Commissioner of
Himachal Pradesh exercises jurisdiction in relation to the
whole of the territories of Himachal Pradesh. The Rent
Controller and the District Judge exercising jurisdiction
under the Act are certainly tribunals, if not courts, and
they function within the territories of Himachal Pradesh.
Therefore, Article 227(1) read with Article 241 confers on
the Court of the Judicial Commissioner power of
superintendence over such tribunals. The words "in
relation to which" obviously qualify the word "territories"
and not the words "courts and tribunals".
Re. 2.-- The material part of Article 227 substantially
reproduces the provisions of Section 107 of the
Government of India Act, 1915, except that the power of
superintendece has been extended by the Article also to
Tribunals. That the Rent Controller and the District Judge
exercising jurisdiction under the Act are Tribunals cannot
and has not been controverted. The only question raised is
as to the nature of the power of superintendence conferred
by the Article. Reference is made to clause (2) of the article
in support of the contention that this article only confers
on the High Court administrative superintendence over
the subordinate courts and tribunals. We are unable to
accept this contention because clause (2) is expressed to be
without prejudice to the generality of the provisions in
clause (1). Further, the preponderance of judicial opinion
in India was that Section 107 which was similar in terms
to Section 15 of the High Courts Act, 1861, gave a power of
judicial superintendence to the High Court apart from and
independently of the provisions of other laws conferring
revisional jurisdiction on the High Court. In this
connection it has to be remembered that Section 107 of the
Government of India Act, 1915, was reproduced in the
Government of India Act, 1935, as Section 224. Section 224
O.P.(DRT)No.360 of 2022 & conn.cases 27
of the 1935 Act, however, introduced sub-section (2), which
was new, providing that nothing in the section should be
construed as giving the High Court any jurisdiction to
question any judgment of any inferior court which was not
otherwise subject to appeal or revision. The idea
presumably was to nullify the effect of the decisions of the
different High Courts referred to above. Section 224 of the
1935 Act has been reproduced with certain modifications
in Article 227 of the Constitution. It is significant to note
that sub-section (2) to Section 224 of the 1935 Act has been
omitted from Article 227. This significant omission has
been regarded by all High Courts in India before whom
this question has arisen as having restored to the High
Court the power of judicial superintendence it had under
Section 15 of the High Courts Act, 1861, and Section 107 of
the Government of India Act, 1915. See the cases referred
to in Moti Lal v. The State through Shrimati Sagrawati
[ILR (1952) 1 Allahabad 558 at p. 567] . Our attention has
not been drawn to any case which has taken a different
view and, as at present advised, we see no reason to take a
different view."
The principles laid down in Waryam Singh have been consistently
followed. The orders impugned in these petitions are orders of Debts
Recovery Tribunal functioning within the territorial limits of this
Court. While the power under Article 227 of the Constitution of India
should never be exercised in a manner that would result in the
petition being an appeal in disguise, this Court would be failing in its
duty if it were to hold that it would not even examine the question as
to whether Tribunal had failed to exercise a jurisdiction vested in it
and such failure has occasioned the failure of justice. In the facts of
these cases, and considering the nature of the orders issued by the
Tribunal, I am convinced that there is an apparent failure by the
O.P.(DRT)No.360 of 2022 & conn.cases 28
Tribunal to exercise a jurisdiction vested in it in a proper manner
occasioning the failure of justice. In Vinu Thomas (supra), this
Court was considering the question as to whether, in the facts and
circumstances of that case, this Court should refuse relief on the
ground that an alternate remedy was available under Section 18 of
the SARFAESI Act and it was held:-
"5. The contention of the learned counsel for the
respondent relying on the decision of the Supreme Court in
Varimadugu Obi Reddy (supra), where the Court
deprecated the practice of entertaining writ application by
the High Court in the exercise of jurisdiction under Art.226
of the Constitution without exhausting the alternative
statutory remedy available under the law, cannot be
accepted. This is not a Writ Petition under Art.226 of the
Constitution of India. It is a petition filed under Art.227 of
the Constitution of India. In Raj Shri Agarwal @ Ram Shri
Agarwal v. Sudheer Mohan, (2022 (5) KLT OnLine 1100
(SC) = 2022 (7) KHC 270 (SC)), the Supreme Court held as
follows: -
"There is a difference and distinction between
the entertainability and maintainability. The
remedy under Article 227 of the Constitution of
India available is a constitutional remedy under
the Constitution of India which cannot be taken
away. In a given case the Court may not
exercise the power under Article 227 of the
Constitution of India if the Court is of the
opinion that the aggrieved party has another
efficacious remedy available under the C.P.C.
However, to say that the Writ Petition under
Article 227 of the Constitution of India shall not
be maintainable at all is not tenable."
It is settled law that the power under Art.227 of the
Constitution may be exercised when there is grave
injustice or failure of justice and when "(i) the Court or the
Tribunal has assumed a jurisdiction which it does not have
(ii) has failed to exercise a jurisdiction which it does have,
such failure occasioning a failure of justice and (iii) the
O.P.(DRT)No.360 of 2022 & conn.cases 29
jurisdiction though available is being exercised in a
manner which tantamounts to overstepping the limits of
jurisdiction..." (See Raveendran Pilla P. & Ors. v. State of
Kerala & Ors., (2020 (6) KLT 838 = 2021 (1) KHC 38) &
Deepak v. Govardhanan Nair, (2021 (6) KLT 708). In Shiv
Shankar Dal Mills v. State of Haryana & Ors. (1980 KLT
OnLine 1016 (SC) = (1980) 2 SCC 437); Justice Krishna
Iyer (speaking for the bench) famously held :- "Nor is it
palatable to our jurisprudence to turn down the prayer for
high prerogative writs, on the negative plea of "alternative
remedy", since the root principle of law married to justice,
is ubi jus ibi remedium." I, therefore, reject the
respondent's plea of an alternate remedy. I am convinced
that Ext.P2 constitutes a failure on the part of the Tribunal
to exercise a jurisdiction vested in it."
Further, Section 18 of the SARFAESI Act provides that any appeal
under that Section can be filed only if "fifty per cent of the amount
of debt due from him, as claimed by the secured creditors or
determined by the Debts Recovery Tribunal, whichever is less" is
deposited before the Appellate Tribunal. Of course, the Appellate
Tribunal has the discretion to reduce the amount to 25%. But that is
no solace. In cases like these, where it has been clearly demonstrated
that the Tribunal has failed to exercise a jurisdiction vested in it in a
proper manner, it would be a negation of justice if the person
aggrieved is required to challenge the order in an appeal under
Section 18 of the Act. The decisions cited at the bar by the learned
counsel appearing of the contesting respondents (banks/financial
institutions) do not compel me to hold that this court should decline
O.P.(DRT)No.360 of 2022 & conn.cases 30
the jurisdiction on the ground that there is an effective alternative
remedy before the Appellate Tribunal. In Raus Constructions
(supra), the facts of the case before the Hon'ble Supreme Court
were that after the Securitisation Application filed by the borrower
was dismissed by the Tribunal after adverting to the contentions
taken before the Tribunal, (including the contention that the land in
question was agricultural land) the borrower approached the High
Court under Article 226 of the Constitution of India and the High
Court had set aside the order of the Tribunal as if it were hearing an
appeal against the order passed by the Tribunal. It was, in such
circumstances that the Supreme Court held that when the remedy
under Section 18 of the SARFAESI Act is available to the borrower, it
would not be open to the borrower to bypass such remedy and
approach the High Court under Article 226/227 of the Constitution
of India. The judgments of the Hon'ble Supreme Court in Punjab
National Bank (supra) and Chhabil Dass Agarwal (supra)
also indicate that they were rendered in completely different factual
circumstances. It is settled law that judgments of a court cannot be
read like Euclid's theorems and each decision must therefore, be
construed with reference to the facts of the particular case. I,
O.P.(DRT)No.360 of 2022 & conn.cases 31
therefore, find that these petitions are maintainable under Article
227 of the Constitution of India in the facts and circumstances of
these cases. I must, at this stage, clarify that wherever the Tribunal
has considered the matter in its proper perspective and where the
impugned orders show the application of mind by the Tribunal, this
Court will not entertain a petition under Article 227 merely because
another view could have been taken. In other words, errors within
jurisdiction are not amenable to be corrected or interfered with
under Article 227 of the Constitution of India.
Has the Tribunal exercised the jurisdiction vested in it in a
proper manner, in the facts and circumstances of these
cases?
10. The SARFAESI Act is a very harsh legislation 13. I have
held earlier in Vinu Thomas (supra) that under the provisions of
the SARFAESI Act, the bank/financial institution is the claimant, the
adjudicator and the executioner. Practically, the only remedy open to
a person aggrieved by the proceedings initiated by the bank is to
make an application to the Tribunal, having jurisdiction, under the
provisions of Section 17 of the SARFAESI Act. Considering the
drastic nature of the powers conferred on the banks/financial
13. See Sami K v. Branch Manager, Bank of India & ors; 2011 (3) KLT 554
O.P.(DRT)No.360 of 2022 & conn.cases 32
institutions under the provisions of the SARFAESI Act, this Court
must expect that the Tribunal will apply its mind to the contentions
taken in the Securitisation Application and a decision on whether or
not an interim stay should be granted will be taken on well-settled
principles governing the grant of interim relief. The Supreme Court
in Mardia Chemicals (supra) has held that proceedings under
Section 17 of the Act, in fact, are not appellate proceedings. It has
been held that an application under Section 17 is the initial action
which is brought before a forum as prescribed under the Act, raising
grievance against the action or measures taken by one of the parties
to the contract and that the proceedings under Section 17 of the Act
are in lieu of a civil suit. Therefore it was held that the requirement
of pre-deposit of any amount at the first instance renders the remedy
illusory and nugatory. Interestingly, it was also held in paragraph 62
as follows:-
"As indicated earlier, the position of the appeal under
Section 17 of the Act is like that of a suit in the court of the
first instance under the Code of Civil Procedure. No doubt,
in suits also it is permissible, in given facts and
circumstances and under the provisions of the law to
attach the property before a decree is passed or to appoint
a receiver and to make a provision by way of interim
measure in respect of the property in suit. But for
obtaining such orders a case for the same is to be made out
in accordance with the relevant provisions under the law.
There is no such provision under the Act."
O.P.(DRT)No.360 of 2022 & conn.cases 33
This finding of the Supreme Court, in my view, emphasises the fact
that in the initial stage of proceedings under the SARFAESI Act,
there is absolutely no adjudication. This view of the Supreme Court
also makes it clear that when an application is brought before the
Tribunal, under Section 17 of the Act, the Tribunal must be alive to
the fact that the Bank/Financial Institution has initiated the
proceedings without any adjudication and that the powers conferred
under the Act are drastic and can have disastrous consequences for
the borrower. This is all the more reason for the Tribunal to apply its
mind with reference to the contentions taken before it (even at the
interim stage) before deciding to grant or reject a prayer for interim
relief.
11. The contentions taken by the petitioners in these cases
before the Tribunal have been briefly noticed above. The orders
issued by the Tribunal, to the extent they reflect a consideration of
the matter have also been extracted. The interim orders issued by
the Tribunal (DRT-I) and which are under challenge in O.P (DRT)
No.360 of 2022, W.P (C) No. 31891/2022 and O.P (DRT) No. 438
of 2022 are identical in terms. To say the least, the orders are clearly
O.P.(DRT)No.360 of 2022 & conn.cases 34
of the 'cut, copy, paste' category and does not reflect any application
of mind by the Tribunal. This is not palatable to our judicial ethos.
The order impugned in O.P (DRT) No. 486 of 2022 also does not
consider any contention taken except the contention that there was
some mistake in the survey number of the property mentioned in the
order of the Chief Judicial Magistrate / notice of the Advocate
Commissioner. All the impugned orders record that the Tribunal is
not entering into the merits of the matter at all. This is clearly a
failure on the part of the Tribunal to exercise a jurisdiction vested in
it.
12. The contention of the learned counsel for the petitioner
in W.P.(C) 31891 of 2022 that there must be an automatic stay as
soon as the application under Section 17 is filed is only to be rejected.
The contention that after the deletion of sub-section (12) of Section
19 of the RDB Act (as applicable to proceedings before the Tribunal
under the SARFAESI Act), which empowered the Tribunal to grant
an interim order by way of injunction, stay or attachment against a
defendant, the Tribunal has no power to grant a conditional interim
order is clearly wrong. Even if the power to grant interim relief (in
the place of an automatic stay) was traceable to sub-section (12) of
O.P.(DRT)No.360 of 2022 & conn.cases 35
Section 19 of the RDB Act (as applicable to proceedings before the
Tribunal under the SARFAESI Act) and that provision is no longer in
the statute book, it is settled law that the Tribunal has the power to
do everything which is incidental or ancillary for the proper exercise
of jurisdiction vested in it. (See Vasakumar Pillai S.P. v.
Motor Accident Claims Tribunal and others14). Further
Section 19(25) always empowers the Tribunal to pass appropriate
interim orders. Moreover the judgment in Mardia Chemicals
(supra) declares in no uncertain terms that the Tribunal has the
power to grant conditional interim orders. Whether any amount is
to be deposited or the extent of amount to be deposited will depend
on the prima facie appreciation by the Tribunal on the merits of the
contentions taken by both sides and on the application of the well
settled principles governing the grant of interim relief namely (i)
strong prima facie case; (ii) balance of convenience; and (iii)
irreparable injury. While it may not be necessary to the Tribunal to
write a detailed order touching upon merits of each and every
contention taken before the Tribunal as well as the response by the
banks/financial institutions to such contentions, the order of the
Tribunal must, on a reading, indicate that it was alive to the
14. 2008 (4) KLT 899
contentions raised in the Securitisation Application. While
considering the challenge to an order of assessment under the Kerala
Value Added Tax Act, a Division Bench of this Court in Prodair Air
Products India Pvt. Ltd. v. State of Kerala 15 held:-
"12. ............................... The need for upholding the rule of
law would also mandate that the high court decide the
matter in situations where the exercise of statutory power
does not conform, inter alia, to the requirements of
fairness, non-arbitrariness and reasonableness and
therefore falls foul of the culture of justification that is seen
as a necessary and essential feature of administrative
decision making16. The said feature requires the decision
of the administrative authority to demonstrate
responsiveness, justification and demonstrated expertise.
Responsiveness refers to the requirement that the reasons
given by the decision maker must respond to the central
issues and concerns raised by the parties by 'listening'
rather than merely 'hearing' the parties. Justification
refers to the principle that the exercise of public power
must be justified, intelligible and transparent, not in the
abstract, but to the individuals subject to it. Demonstrated
expertise refers to the requirement of the decision maker
establishing the reasonableness of his decision by
demonstrating therein his experience and expertise.
Added to the above is the requirement of a reviewing court
to understand the contextual constraints, if any, under
which the decision under review was rendered by the
administrative authority while assessing its
reasonableness.17 "
While the above observations were in relation to the legality of an
order of assessment under the provisions of the KVAT Act
(asessment proceedings under a taxing statute are quasi-judicial
15. 2023 (3) KLT 234
16. Akshay N. Patel v. RBI; (2022) 3 SCC 694
17. Paul Daly, 'Vavilov and the Culture of Justification in Administrative Law'-
https://www. administrativelawmatters.com/blog/2020/04/20/ vavilov-and-the-
culture-of-justification-in-administrative-law
O.P.(DRT)No.360 of 2022 & conn.cases 37
proceedings) , I see no reason why those principles must not extend
to statutory tribunals as well. The provisions of the RDB Act read
with provisions of the Tribunals Reforms Act, 2021 and the Tribunal
(Conditions of Service) Rules, 2021 make it clear that it must be
manned by a person who "is, or has been, a District Judge". The
orders issued by the Tribunal must therefore demonstrate
reasonableness of its decision by demonstrating therein its
experience and expertise as held in Prodair Air Products
(supra). Further a judicial order sans reason does not pass the test
of fairness and reasonableness as held in X v. Dr.S & anr (supra).
13. For all these reasons, I am convinced that the petitioners
are entitled to suceed. These petitions are therefore allowed in the
following manner:-
(i) Ext.P12 order in O.P (DRT) No. 360 of 2022 is
quashed. I.A No.1261 of 2022 in S.A No. 315 of 2022 will
stand restored to the file of the DRT-I, Ernakulam. The
Tribunal shall re-consider I.A No.1261 of 2022 in S.A No. 315
of 2022 afresh, and in accordance with the law and after
affording an opportunity of hearing to the parties. Status quo
O.P.(DRT)No.360 of 2022 & conn.cases 38
as on today shall be maintained till fresh orders are passed as
directed above. The tribunal shall endeavor to pass fresh
orders after adverting to the contentions taken and having
regard to the observations in this judgment, within a period of
two months from the date of receipt of a certified copy of this
Judgment.
(ii) Ext.P6 order in W.P (C) No. 31891 of 2022 is quashed.
I.A No.868 of 2022 in S.A No.224 of 2021 will stand restored
to the file of the DRT-I, Ernakulam. The Tribunal shall re-
consider I.A No.868 of 2022 in S.A No.224 of 2021 afresh,
and in accordance with the law and after affording an
opportunity of hearing to the parties. Status quo as on today
shall be maintained till fresh orders are passed as directed
above. The tribunal shall endeavor to pass fresh orders after
adverting to the contentions taken and having regard to the
observations in this judgment, within a period of two months
from the date of receipt of a certified copy of this Judgment.
O.P.(DRT)No.360 of 2022 & conn.cases 39
(iii) Ext.P2 order in O.P (DRT) No. 438 of 2022 is
quashed. I.A No.1671 of 2022 in S.A No.79 of 2022 will stand
restored to the file of the DRT-I, Ernakulam. The Tribunal
shall re-consider I.A No.1671 of 2022 in S.A No.79 of 2022
afresh, and in accordance with the law and after affording an
opportunity of hearing to the parties. Status quo as on today
shall be maintained till fresh orders are passed as directed
above. The tribunal shall endeavor to pass fresh orders after
adverting to the contentions taken and having regard to the
observations in this judgment, within a period of two months
from the date of receipt of a certified copy of this Judgment.
(iv) Ext.P18 order in O.P (DRT) No. 486 of 2022 is quashed.
I.A No.2838 of 2022 in S.A No.536 of 2022 will stand
restored to the file of the DRT-II, Ernakulam. The Tribunal
shall re-consider I.A No.2838 of 2022 in S.A No.536 of 2022
afresh, and in accordance with the law and after affording an
opportunity of hearing to the parties. Status quo as on today
shall be maintained till fresh orders are passed as directed
above. The tribunal shall endeavor to pass fresh orders after
O.P.(DRT)No.360 of 2022 & conn.cases 40
adverting to the contentions taken and having regard to the
observations in this judgment, 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 contentions taken before the Tribunal by
the parties.
Sd/-
GOPINATH.P
JUDGE
acd/AMG
O.P.(DRT)No.360 of 2022 & conn.cases 41
APPENDIX OF OP (DRT) 360/2022
PETITIONER EXHIBITS
EXHIBIT.P1 TRUE COPY OF THE NOTICE DATED 05/11/2019
PURPORTEDLY ISSUED UNDER SECTION 13(2) OF THE
SARFAESI ACT.
EXHIBIT.P2 TRUE COPY OF THE REPRESENTATION DATED 01/01/2022
SENT BY THE PETITIONER TO THE RESPONDENT BANK.
EXHIBIT.P3 TRUE COPY OF THE REPLAY TO
EXHIBIT.P2REPRESENTATION SENT BY THE RESPONDENT
DATED 08/01/2020.
EXHIBIT.P4 TRUE COPY OF THE NOTICE RECIEVED FROM SAMEERA
PUPORTEDLY SERVED TO HER BY ADVOCATE
COMMISSIONER MS.SREETHU.K ON 24/04/2022.
EXHIBIT.P5 TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE
PETITIONER"S FOR RELEVANT PERIOD.
EXHIBIT.P6 TRUE COPY OF THE RELEVANT CIRCULAR OF RBI ON
ASSEEST CLASIFICATION.
EXHIBIT.P.7 TRUE COPY OF THE SEARCH REPORT ISSUED BY THE
CERSAI ( THE CENTERAL REGISTRY) SHOWING THE
REGISTRATION.
EXHIBIT.P.8. TRUE COPY OF THE AFFIDAVIT FILED BY THE
AUTHORISED OFFICER OF THE RESPONDENT BANK BEFORE
THE HONOURABLE CHIEF JUDICIAL MAGISTRATE,
THALASSERY.UNDER SECTION 14.
EXHIBIT.P.9. TRUE COPY OF THE SECURTISATION APPLICATION
NO.315/2022 FILED BEFORE THE DRT-1, ERNAKULAM,
WITHUOT ANNEXURES.
EXHIBIT.P.10. TRUE COPY OF THE INTERIM APPLICATION
NO.1261/2022 IN SECURITISATION APPLICATION
NO.315/2022 FILED BEFORE THE DRT-1, ERNAKULAM.
EXHIBIT.P.11. TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT
BANK TO EXHIBIT.P.10 INTERLOCUTORY APPLICATION.
EXHIBIT.P.12. TRUE COPY OF THE ORDER 19/07/2022 ISSUED BY THE
HONOURABLE DRT-1 ERNAKULAM IN I.A. 1261/2022 IN
S.A. 315/2022.
O.P.(DRT)No.360 of 2022 & conn.cases 42
APPENDIX OF WP(C) 31891/2022
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF SA 224/2021 IN DRT-1
ERNAKULAM.
Exhibit P2 TRUE COPY OF THE INTERIM ORDER DATED
5.1.2022 IN OP (DRT) 1/2022 DRT-1 ERNAKULAM
Exhibit P3 TRUE COPY THE JUDGMENT DATED 23.3.2022 IN
OP DRT 1/2022 DRT-1 ERNAKULAM.
Exhibit P4 TRUE COPY OF AMENDED SA 224/2021 IN DRT-I
ERNAKULAM.
Exhibit P5 THE TRUE COPY OF IA 868/2022 IN SA 224/2021
IN DRT-1 ERNAKULAM
Exhibit P6 TRUE COPY OF ORDER DATED 7.7.2022 IN IA
868/2022 IN SA 224/2021 IN DRT-I ERNAKULAM.
Exhibit P7 THE TRUE COPY OF THE REVIEW PETITION 2/2022
IN SA 224/2021 DRT-I ERNAKULAM.
Exhibit P8 THE TRUE COPY OF IA 954/2022 FOR AMENDMENT
IN SA 224/2021 DRT-I ERNAKULAM.
Exhibit P9 THE TRUE COPY OF THE IA 955/2022 FOR STAY
IN SA 224/2021 IN DRT-I ERNAKULAM.
Exhibit P10 THE TRUE COPY OF THE PETITION FOR DIRECTION
DATED 14.09.2022 IN SA 224/2021 IN DRT-I
ERNAKULAM.
Exhibit P11 THE TRUE COPY OF THE INTERIM REPORT DATED
27.8.2022 FILED BY THE ADVOCATE
COMMISSIONER IN MC 451/2022 BEFORE THE
ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT
(MP & MLA)ERNAKULAM.
Exhibit P12 THE TRUE COPY OF THE MC 451/2021 IN THE
FILE OF ACJM (MP & MLA) COURT ERNAKULAM.
Exhibit P13 THE TRUE COPY OF THE CENTRAL REGISTRY
REPORT AND INPUT DETAILS DOWNLOADED BY THE
PETITIONERS IN RESPECT OF THE ITEM NO.1
SCHEDULED IN MC 451/2021 OF ACJM (MP & MLA)
COURT ERNAKULAM.
O.P.(DRT)No.360 of 2022 & conn.cases 43
Exhibit P14 THE TRUE COPY OF THE CENTRAL REGISTRY
REPORT AND INPUT DETAILS DOWNLOADED BY THE
PETITIONERS IN RESPECT OF THE ITEM NO.2
SCHEDULED IN MC 451/2021 OF ACJM (MP & MLA)
COURT ERNAKULAM
Exhibit P15 THE TRUE COPY OF THE CENTRAL REGISTRY
REPORT AND INPUT DETAILS DOWNLOADED BY THE
PETITIONERS IN RESPECT OF THE ITEM NO.3
SCHEDULED IN MC 451/2021 OF ACJM (MP & MLA)
COURT ERNAKULAM.
Exhibit P16 THE TRUE COPY OF THE AFFIDAVIT DATED
22.09.2022 FILED BY THE PETITIONERS IN SA
224/2021 BEFORE THE 2ND RESPONDENT
Exhibit P17 THE TRUE COPY OF THE ORDER DATED 3.10.2022
IN RP 2/2022 IN SA 224/2021 BEFORE THE 2ND
RESPONDENT
Exhibit P18 THE TRUE COPY OF THE PETITION FOR AMENDMENT
DATED 2.10.2022 (WITHOUT ANNEXURES) FILED
IN SA 224/2021
Exhibit P19 THE TRUE COPY OF THE CONTEMPT NOTICE DATED
21.9.2022 ISSUED TO THE 4TH RESPONDENT IN
RESPECT OF THE PROPERTIES IN MC 20/2022 IN
THE FILE OF THE CHIEF JUDICIAL MAGISTRATE
COURT, ERNAKULAM.
Exhibit P20 THE TRUE COPY OF THE POSSESSION NOTICE
DATED 14.09.2022 ISSUED BY THE 4TH
RESPONDENT
O.P.(DRT)No.360 of 2022 & conn.cases 44
APPENDIX OF OP (DRT) 486/2022
PETITIONER EXHIBITS
EXHIBIT.P1. TRUE COPY OF THE NOTICE DATED 27/09/2022
ISSUED BY THE ADV. PRIYANKA P.B, TO THE 1ST
AND 2ND PETITIONERS.
EXHIBIT. P2. TRUE COPY OF PETITION FILED BY RESPONDENT
UNDER SECTION 14 BEFORE CJM THRISSUR DATED
NIL
EXHIBIT.P3. TRUE COPY OF THE SEARCH REPORT DATED
29/08/2022 ISSUED BY THE CERSAI PRODUCED BY
THE RESPONDENT BEFORE THE CJM COURT SHOWING
THE DATE OF REGISTRATION OF SECURITY
INTEREST.
EXHIBIT.P4, TRUE COPY OF THE CONFIRMATION OF MEMORANDOM
OF DEPOSIT OF TITTLE DEEDS DATWD 15/12/2015
BY THE 2ND PETITIONER
EXHIBIT.P5. TRUE COPY OF THE ASSIGNMENT DEED 236/05 OF
SRO WADAKKANCHERY.
EXHIBIT.P6. TRUE COPY OF THE ORDERS DATED 01/09/2022
PASSEDS BY CJM, THRISSUR IN CR.M.M. 354/22
EXHIBIT.P7. TRUE COPY OF THE TITLE DEED NO.399/1/2015
OF SRO SRO CHAVAKKAD DATED 23/02/2015
SHOWING THE SY. NO. OF THE PROPERTY
BELONGING TO PETITIONERS 3 AND 4
EXHIBIT.P8. TRUE COPY OF THE PASSPORT OF THE SON OF THE
SECOND PETITIONER SHOWING THAT HE WAS NOT
IN INDIA ON THE DATE WHEN THE NOTICE IS
CLAIMED TO BE SERVED.
EXHIBIT.P9. TRUE COPY OF THE NOTICE DATED 13/02/2020
CLAIMED TO HAVE BEEN SERVED ON PETITIONERS.
EXHIBIT.P10. TRUE COPY OF THE RESPONSE DATED 05/03/2020
SUBMITTED ALONG WITH A TRUE COPY OF THE
POSTAL RECEIPT EVIDENCING DISPATCH.
EXHIBIT.P11. TRUE COPY OF 1ST MEMORANDOM OF EXTENSION OF
EQUITQBLE MORTGAGE DATED 15/12/2015
PRODUCED BY THE RESPONDENT BANK BEFORE THE
O.P.(DRT)No.360 of 2022 & conn.cases 45
CJM COURT ,THJRISSUR.
EXHIBIT.P12. TRUE COPY OF 2ND MEMORANDOM OF EXTENSION OF
EQUITQBLE MORTGAGE DATED 15/12/2015
PRODUCED BY THE RESPONDENT BANK BEFORE THE
CJM COURT ,THJRISSUR.
EXHIBIT.P13. TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT
OF EXHIBIT.P2 DATED NIL FILED BEFORE THE
CJM COURT ,THRISSUR.
EXHIBIT.P14. TRUE COPY OF THE NOTICE DATED
14/10/2020.ISSUED UNDER SECTION 13(4)
SARFAESI ACT.
EXHIBIT.P15. TRUE COPY OF THE SECURITISATION APPLICATION
NO.536/2022 PENDING BEFORE HONOURABLE DRT-
II , ERNAKULAM. WITHOUT ANNEXURES.
EXHIBIT.16. TRUE COPY OF THE APPLICATION FOR INTERIM
STAY NUMBERED AS IA 2838/2022 IN S.A
536/2022.
EXHIBIT.P17. TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
RESPONDENT BANK IN I.A2838/2022 IN S.A
536/2022.
EXHIBIT.P18. TRUE COPY OF THE ORDER DATED 21/11/2022 OF
HONOURABLE DRT.II , ERNAKULAM IN I.A
2838/2022 IN S.A.536/2022.
O.P.(DRT)No.360 of 2022 & conn.cases 46
APPENDIX OF OP (DRT) 438/2022
PETITIONER EXHIBITS
Exhibit-P1 TRUE COPY OF RELEVANT PAGES OF SA
NO.79/2022 DATED 17/02/2022 FILED BY THE
PETITIONER BEFORE THE DEBT RECOVERY
TRIBUNAL-I ERNAKULAM.
Exhibit-P2 TRUE COPY OF THE ORDER OF DEBT RECOVERY
TRIBUNAL-I ERNAKULAM IN IA NO.1671/2022 IN
SA NO.79 /2022 DATED 18-8-2022
Exhibit-P3 TRUE COPY OF THE PHOTOGRAPHS OF THE
PROPERTY OF THE PETITIONER
