Kerala High Court
M/S Kerala Fashion Jewellery, D.No. ... vs Debt Recovery Appellate Tribunal, ... on 14 May, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
Tuesday, the 14th day of May 2024 / 24th Vaisakha, 1946
IA.NO.1/2024 IN OP (DRT) NO. 224 OF 2023
SA 372/2018 OF DEBT RECOVERY TRIBUNAL- 2, ERNAKULAM
APPLICANTS/RESPONDENTS 3 AND 4 IN O.P.(DRT):
1. M/S. KOTAK MAHINDRA BANK LIMITED, REGD.OFFICE.27 BKC, C 27, G BLOCK,
BANDRA KURLA COMPLEX,BANDRA(E), MUMBAI- REPRESENTED BY ITS MANAGING
DIRECTOR, PIN-400051
2. THE AUTHORISED OFFICER, M/S. KOTAK MAHINDRA BANK LIMITED, BKC, C 27,
A BLOCK, BANDRA KURLA COMPLEX,BANDRA(E), MUMBAI, PIN-400051
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 AND 2 IN O.P.(DRT):
1. M/S. KERALA FASHION JEWELLERY, D.NO. PP/VI, 656,MANAJERY
ROAD, PANDIKKAD, MALAPPURAM, REPRESENTED BY ITS MANAGING PARTNER OK
BIJU AGED 48 YEARS, PIN-676521
2. MR. O.K. ROY, AGED 58 YEARS, S/O. OLARI KOCHUVAREED, KOCHUVARUNNI,
NO. 4/562, THEKKEKARA PERINTHALMANNA, MALAPPURAM, PIN-679322.
3. O.K. JOJU, AGED 55 YEARS, S/O. OLARI KOCHUVAREED KOCHUV VARUNNI, -
NI,RESIDING AT 4/ 43, THEKKARA OLARI, OLLUR, TRISSUR, PIN-680306.
4. MRS. SHEEJA ROY, AGED 54 YEARS, RESIDING AT NO.4/562, THEKKEKARA,
PERINTHALMANNA, MALAPPURAM, PIN-679322
5. MR. O.K. BIJU, AGED 48 YEARS, RESIDING AT 4/ 43, THEKKARA OLARI,
OLLUR, TRISSUR, PIN- 680306.
6. SINDRELLA JOJU, AGED 45 YEARS, RESIDING AT 4/ 43, THEKKARA OLARI,
OLLUR,TRISSUR, PIN- 680306.
7. MINI BIJU, AGED 46 YEARS, W/O. O.K. BIJU, 4 / 286, NAMBADAN HOUSE,
CHALAKUDY, TRISSUR, PIN-680307
8. ROSE MOL JOHNSON, AGED 50 YEARS, D/O. LATE KOCHUTRESSIA, MANGALAM
P.O., VADAKKANCHERRY, TRISSUR DISTRICT, PIN-680623
9. DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI, 7TH FLOOR, ADDITIONAL
OFFICE BUILDING, SHASTRI BHAWAN, HADDOWS ROAD, CHENNAI, REPRESENTED
BY ITS REGISTRAR, PIN-600006
10. THE DEBTS RECOVERY TRIBUNAL-2 (ERNAKULARN&LAKSHWADEEP)1TH FLOOR,
KERALA STATE HOUSING BOARD BUILDING, PANAMPILLY NAGAR, ERNAKULAM,
REPRESENTED BY ITS REGISTRAR, PIN-682014
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to clarify that the
Debts Recovery Tribunal No. II, Ernakulam can dispose S.A. No. 372/2018 as
the petitioners in OP (DRT) No. 224/2023 have failed to comply with the
direction in the Judgment dated 27.07.2023, or to pass such other
directions as is deemed just and proper.
This Application coming on for orders upon perusing the application
and the affidavit filed in support thereof and this Court's Final Order
dated 27/07/2023 and upon hearing the arguments of M/S. THOMAS T.
VARGHESE, ACHU SUBHA ABRAHAM, V.T. LITHA & K.R. MONISHA, Advocates for the
petitioner and of SRI. C.S. ULLAS, Advocate for the respondents, the court
passed the following:
C.S.DIAS,J
======================
I.A No.1 of 2024
in
OP(DRT) No.224 of 2023
-----------------------------------
Dated this the 14th day of May, 2024
ORDER
The application is filed to clarify that the Debts
Recovery Tribunal-2, Ernakulam (in short, 'DRT-II') can
proceed to dispose of SA No.372/2018 on its file since the
respondents in the application (petitioners in OP(DRT)
No.224/2023) have failed to comply with the direction in
the judgment dated 27.7.2023 passed in the original
petition.
2. The Deputy Manager of the first applicant Bank
has averred in the affidavit filed in support of the
application that, the respondents 1 to 8 in the application
had filed the original petition, to direct the Debts Recovery
Appellate Tribunal, Chennai ('DRAT' for short) to dispose
of MA (SA) No.30/2022 within a time period fixed by this
in
Court and until such time to direct the DRT-II to defer the
disposal of SA No.372/2018. By judgment dated 27.7.2023,
this Court allowed the original petition, by directing the
DRAT to dispose of MA (SA) No.30/2022 within one month
from the date of receipt of a certified copy of the judgment,
provided the respondents 1 to 8 take steps to
implead/record the legal representatives of the deceased 8 th
appellant in MA(SA) No.30/2022 within one week from the
date of judgment, and if no steps are taken, the DRT-II was
directed to proceed with SA No.372/2018. Pursuant to the
judgment, on 2.8.2023, the respondents 1 to 8 had filed a
defective impleading application before the DRAT. Even
though the Registry of the DRAT had noted certain defects
in the application, the respondents 1 to 8 had failed to cure
the defects. Yet, the DRAT and DRT-II have not disposed of
MA(SA) No.30/2022 and SA No.372/2018 respectively, as
directed by this Court, on the ground that a defective
impleading application, filed by the respondents 1 to 8, is
pending consideration. Now, the DRT-II has sought for a
in
clarification that there is no legal impediment in proceeding
with SA No.372/2018 because the respondents 1 to 8 have
failed to take steps to implead the legal representatives of a
deceased party within the stipulated time period. Presently,
neither the DRAT nor the DRT-II are disposing of MA(SA)
30/2022 and SA No.372/2018. Thus, the entire proceedings
have come to a standstill due to the deliberate action of the
respondents 1 to 8. The applicants have initiated the
proceedings under the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002 ( in short, 'Act') before the Chief Judicial Magistrate
Court as early as on 1.3.2017. An Advocate Commissioner
was appointed on 3.3.2017 to take possession of the secured
asset. The said order was challenged before the DRT-II in SA
No.372/2018 on 14.9.2018. The DRT-II had passed an ad-
interim order of status-quo on 15.9.2018. SA No.372/2018 was
finally heard on 27.3.2019 and posted for orders to 13.5.2019.
in
At that point of time, the respondents made an incorrect
submission that an interim order was passed by the Hon'ble
Supreme Court. Accordingly, the passing of the final orders in
SA No.372/2018 was deferred. The proceedings are pending
for the last 5 ½ years. It is taking advantage of the judgment
passed by this Court, the respondents 1 to 8 are stalling the
disposal of SA No.372/2018. Hence, it may be clarified that
there is no legal impediment in proceeding with SA
No.372/2018 due to the non-compliance of the directions
passed by this Court.
3. The fifth respondent has filed a counter affidavit for
and on behalf of the respondents 1 to 8. He has refuted the
allegations in the application. It is contended that the
respondents had taken steps to implead the legal representatives
within one week from the judgment, as stipulated by this Court.
But, on 28.12.2023, the DRAT had dismissed the impleading
in
petition on the ground of delay and, consequentially, dismissed
MA(SA) No.30/2022 as abated against the deceased party.
Subsequently, the Chairperson of the DRAT was on leave and
the case was adjourned to 29.4.2024. The respondents have
complied with the directions passed by this Court. The present
application is filed only to deny the respondents the benefit of
the judgment. Hence the application may be dismissed.
4. Heard; Sri.Philip T.Varghese, the learned counsel
appearing for the applicants and Sri.C.S Ullas, the learned
counsel appearing for the respondents.
5. The original petition was filed to direct the DRAT to
dispose of MA(SA) No.30/2022 within a time period fixed by
this Court and until such time to defer further proceeding in SA
No.372/2018 pending before the DRT-II.
6. It was the respondents' case that, challenging the
securitization proceedings, the respondents had filed SA
in
No.372/2018, which was pending before the DRT-II. They had
also filed SA No.161/2018, which was pending before the
Debts Recovery Tribunal-1, Ernakulam (in short, 'DRT-I'). In
order to consolidate the two proceedings, they had filed
MA(SA) No.30/2022 before the DRAT to transfer SA
No.372/2018 from the DRT-II to DRT-I, so that the proceedings
could be jointly heard.
7. The original petition was resisted by the petitioners,
inter alia, contending that the applications were already
independently heard by the respective Tribunals, and were
reserved for orders. The sole intention of the respondents was
to protract the determination of the securitization applications.
8. When the original petition came up for consideration,
notwithstanding the objection of the petitioners, this Court had
called for a report from the DRAT to ascertain the status of
MA(SA) No.30/2022. It was communicated by the DRAT that,
in
although the respondents were directed to take steps to implead
the legal representatives of the deceased appellant, no steps
were taken.
9. After considering the rival pleadings, submissions
and materials on record, this Court disposed of the original
petition by directing the DRAT to dispose of MA(SA)
No.30/2022 within a period of one month from the date of
receipt of a certified copy of the judgment, provided the
respondents take steps to implead the legal representatives of
the deceased 8th appellant, within one week from 27.7.2023. It
was also clarified that, if the respondents failed to take steps
within the stipulated time period, the respective Tribunals can
proceed with the securitization applications and dispose of the
same in accordance with law.
10. Indisputably, even though the respondents 1 to 8 had
purportedly filed an online application before the DRAT on
in
2.8.2023, the same was defective. Although the Registry of the
DRAT had noted certain defects in the application, the
respondents 1 to 8 failed to cure the defects. Instead, they
filed Annexure -1 application before the DRT-II, to adjourn
SA No.372/2018 till the disposal of MA(SA) No.30/2022. In
the light of the above application, the DRT-II has adjourned the
consideration of SA No.372/2018. The fact remains that, no
valid application was filed by the respondents within the
stipulated time period. The respondents have also failed to
move this Court seeking for enlargement of time. Needless to
mention that, when this Court had directed steps to be taken, it
means effective steps and not defective steps. Thus, the time
period fixed by this Court has already lapsed. This Court also
accepts the contention of the petitioners that the intention of the
respondents is to protract the proceedings. Even otherwise, if
the two proceedings are not consolidated and jointly disposed
in
of, no prejudice is likely to be caused to the respondents
because the hearings have been concluded.
11. On an anxious consideration of the rival pleadings,
the materials on record and after hearing the learned counsel for
the parties, I am of the firm view that the applicants 1 to
8/petitioners in OP(DRT) No.224/2023 have willfully failed to
comply with the specific direction of this Court in judgment
dated 27.7.2023 by not taking effective steps within the time
period fixed by this Court.
Resultantly, I allow the application by clarifying that there
is no legal impediment in the DRTs I and II in disposing SA
Nos. 161 and 372 of 2018, in accordance with law and as
expeditiously as possible.
sd/-
sks/13.5.2024 C.S.DIAS, JUDGE
