Kerala High Court
Johnson Varkey M vs Authorised Officer on 12 June, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
OP (DRT) NO. 198 OF 2024
SA NO.335 OF 2023 OF DEBT RECOVERY TRIBUNAL- 2, ERNAKULAM
PETITIONER/APPLICANT:
JOHNSON VARKEY M
AGED 49 YEARS
S/O. M.J.VARKEY,MANAKULATHIL EBENEZAR,
KUDAMALOOR.PO, KOTTAYAM, PIN - 686017
BY ADV S.SUNIL KUMAR (PALAKKAD)
RESPONDENTS/DEFENDANTS:
1 AUTHORISED OFFICER
STATE BANK OF INDIA, SSI KOTTAYAM BRANCH,
2ND FLOOR, PARACKAL BUILDING,
LAL BAHADUR SASTHRI ROAD, KOTTAYAM,
PIN - 686001
2 THE AUTHORIZED OFFICER
STATE BANK OF INDIA,
STATE BANK OF INDIA ASSET RECOVERY,
MANAGEMENT BRANCH, M.G.ROAD,
ERNAKULAM, PIN - 682036
SRI.M. JITHESH MENON
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(DRT) No.198 of 2024
2
JUDGMENT
Dated this the 12th day of June, 2024
The petitioner, who availed a Housing Loan from the
State Bank of India, has filed this O.P(DRT) seeking to set
aside Ext.P6 order dated 14.05.2024 of the Debts Recovery
Tribunal-II, Ernakulam in S.A. No.335 of 2023.
2. According to the petitioner, the recovery measures
initiated by the Bank is illegal, arbitrary and vitiated by
irregularities. Due to the loss of occupation alone, the
petitioner could not maintain the loan account. The property
sought to be put to auction by the Bank is the residential
building, where the petitioner is residing. The petitioner is not
a willful defaulter.
3. The arrears arose in the loan account due to
reasons beyond the control of the petitioner. If the Advocate
Commissioner takes possession of the residential building of
the petitioner, the petitioner will be put to irreparable loss and
injury.
4. Standing Counsel entered appearance on behalf of
the Bank and resisted the original petition. The Standing
Counsel pointed out that this is the fifth round of litigation. The
petitioner had earlier filed W.P.(C) No.5782 of 2023, where
the petitioner was given an instalment facility to clear the
dues. Then the petitioner filed W.A. No.676 of 2023 against
the said order. A Division Bench of this Court permitted the
petitioner to repay the dues in six monthly instalments. The
petitioner did not adhere to the time schedule prescribed by
this Court. Subsequently, the petitioner filed O.P(DRT) No.493
of 2023. The said O.P(DRT) was disposed of permitting the
petitioner to approach the Bank for any relief under the "Rinn
Samadhan Scheme".
5. The Standing Counsel would submit that the
petitioner was given an opportunity to clear the loan under the
"Rinn Samadhan Scheme". The petitioner did not avail the
same. Subsequently, O.P(DRT) No.161 of 2024 was filed by
the petitioner. By Ext.P5 judgment, this Court directed the
Debts Recovery Tribunal to consider and pass orders on
Ext.P3 on or before 23.05.2024. Ext.P6 order has been
passed by the Debts Recovery Tribunal pursuant to the
direction of this Court. There is nothing illegal in Ext.P6
warranting interference by this Court under Article 227 of the
Constitution of India, urged the Standing Counsel.
6. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the Bank.
7. Ext.P6 is the proceedings in I.A.No.2231 of 2023 in
S.A. No.335 of 2023. The I.A. was filed by the petitioner
seeking stay of the securitisation proceedings initiated by the
defendants including Annexure A1 notice issued by the
Advocate Commissioner. The Tribunal carefully considered
the issues involved. The Tribunal noted that the notice issued
by the Advocate Commissioner was addressed properly.
There is a presumption that it was duly served on the
petitioner. The burden lies on the petitioner to establish non-
service of the notice on him. In the absence of any contrary
material, the Tribunal found no reason to believe that the
notice has not been served.
8. The Tribunal also noted that a notice was issued to
the petitioner as early on 10.03.2020 and thereafter, symbolic
possession was taken on 06.10.2021, which is within the
knowledge of the petitioner. At that time, the petitioner did not
raise any issue regarding the non-service of Demand Notice
on the petitioner.
9. The Debts Recovery Tribunal, on the basis of the
materials available, found that the letter issued by the
defendants on 26.09.2022 on One Time Settlement proposal
was accepted and the petitioner was given permission to
redeem the loan on or before 10.01.2023, which the petitioner
did not honour. The other contentions of the petitioner
regarding non registration of mortgage in CERSAI portal was
also considered by the Tribunal. The Tribunal found that the
mortgage has been duly registered in the CERSAI portal. For
all the above reasons, the Debts Recovery Tribunal dismissed
the stay petition.
I do not find any illegality in Ext.P6 order passed by the
Tribunal warranting interference by this Court. The O.P(DRT)
is therefore dismissed.
Sd/-
N.NAGARESH
JUDGE
spk
APPENDIX OF OP (DRT) 198/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ADVOCATE COMMISSION
NOTICE IN MC NO-175/2022 ON THE FILES
OF HONBLE CHIEF JUDICIAL MAGISTRATE
COURT, ALAPPUZHA DATED 06.05.2022
Exhibit P2 TRUE COPY OF THE SECURITIZATION
APPLICATION WITHOUT ANNEXURES AS SA
NO-335/2023 FILED BEFORE THE DEBT
RECOVERY TRIBUNAL-II ERNAKULAM DATED
07.07.2023
Exhibit P3 TRUE COPY OF THE STAY PETITION AS IA
NO-2231/2023 IN SA NO-335/2023 FILED
BEFORE THE DEBT RECOVERY TRIBUNAL-II
ERNAKULAM DATED 07.07.2023
Exhibit P4 TRUE COPY OF THE JUDGMENT IN OPDRT NO-
493/2023 OF HONBLE HIGH COURT DATED
23.11.2023
Exhibit P5 TRUE COPY OF THE JUDGMENT IN OPDRT NO-
161/2024 OF HONBLE HIGH COURT DATED
23.04.2024
Exhibit P6 TRUE COPY OF THE ORDER IN IA NO-
2231/2023 IN SA NO-335/2023 OF DEBT
RECOVERY TRIBUNAL-II ERNAKULAM DATED
14.05.2024
