Kerala High Court
M.D Abdulla vs South Indian Bank Limited on 20 May, 2024
Author: N. Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
OP (DRT) NO. 88 OF 2024
ORDER DATED 09.01.2024 IN SA.34/2023 OF THE DEBTS
RECOVERY TRIBUNAL-1, ERNAKULAM
ORDER DATED 21.02.2024 IN APPEAL DIARY NO.284/2024
OF THE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI
PETITIONER/APPLICANT
M.D ABDULLA
AGED 75 YEARS
S/O. IBRAHIM, BERKA HOUSE, BEVINJA,
CHENGALA P.O, KASARAGOD, PIN - 671541
BY ADVS.
V.K.PEERMOHAMED KHAN
GIRISH KUMAR V.C
ASNA M.B.
RESPONDENTS/DEFENDANTS:
1 SOUTH INDIAN BANK LIMITED
KASARAGOD BRANCH, GOLDEN ARCADE,
NEAR NEW BUS STAND,
KASARAGOD
REPRESENTED BY ITS CHIEF MANAGER, PIN - 671121
2 THE AUTHORIZED OFFICER/CHIEF MANAGER
SOUTH INDIAN BANK LIMITED, KASARAGOD BRANCH,
GOLDEN ARCADE, NEAR NEW BUS STAND,
KASARAGOD, PIN - 671121
BY ADVS.
MOHAN JACOB GEORGE
P.V.PARVATHY (P-41)(K/000036/1991)
REENA THOMAS(R-364)
NIGI GEORGE(K/1169/2012)
ANANTHU V.LAL(K/001233/2022)
HARISANKAR S.(K/000702/2023)
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 20.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(DRT) No.88/2024
:2:
N. NAGARESH, J.
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O.P.(DRT) No.88 of 2024
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Dated this the 20th day of May, 2024
JUDGMENT
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The petitioner, who is a Contractor and who has
availed various financial assistances from the 1 st respondent-
Bank, is seeking to direct the respondent-Bank to keep in
abeyance proceedings for dispossession of the petitioner as
per Ext.P7, until Ext.P5 appeal filed before the Debts
Recovery Appellate Tribunal, Chennai get listed and orders
passed in Ext.P6 stay petition.
2. The petitioner states that the 1 st respondent-Bank
sanctioned an overdraft facility of ₹2,15,00,000/- on
23.01.2014 to the petitioner. The overdraft limit was later
reduced to ₹98,00,000/-. The 1st respondent also sanctioned
a loan of ₹21,31,000/- on 08.09.2020. The petitioner was a
guarantor for a loan of ₹4.5 Crores availed on 17.01.2020
and another loan of ₹88,26,000/- availed on 27.08.2020.
3. When the borrowers failed to maintain the loan
account, the 1st respondent-Bank approached the Chief
Judicial Magistrate's Court filing application under Section 14
of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002. Symbolic
possession of the property of the petitioner having an extent
of 65 Cents in re-survey No.123/2.pt situated in Chengala
Village was taken possession of on 05.03.2022. On
30.12.2022, the Advocate Commissioner appointed by the
Chief Judicial Magistrate's Court informed the petitioner that
physical possession of the property will be taken over on
16.01.2023.
4. The petitioner approached the Debts Recovery
Tribunal-I, Ernakulam filing SA No.34/2023. IA No.187/2023
was filed by the petitioner for stay was allowed as per Ext.P3
on condition that the petitioner remits an amount of
₹14,53,095/- each in three instalments. Subsequently, the
Debts Recovery Tribunal-I, Ernakulam dismissed the SA as
per Ext.P4 order dated 09.01.2024.
5. The petitioner states that the petitioner had
preferred Ext.P5 appeal against Ext.P4 order. Ext.P6 stay
petition has also been filed by the petitioner. The petitioner
states that the petitioner has a fair chance to win in the
appeal preferred before the Debts Recovery Appellate
Tribunal and if the Advocate Commissioner takes over
physical possession of the property in the meanwhile, the
petitioner will be put to untold hardship and loss.
6. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing respondents
1 and 2.
7. The petitioner admits the financial assistance
extended by the 1st respondent-Bank. It is seen from Ext.P1
order of the Chief Judicial Magistrate's Court, Kasaragod that
the outstanding dues in four loan accounts of the petitioner
would come to ₹1,45,30,955.12 as on 22.06.2022. The
petitioner approached the Debts Recovery Tribunal invoking
Section 17 of the SARFAESI Act. The SA was filed seeking
to declare that the classification of the loan account of the
petitioner as NPA and all further proceedings under the
SARFAESI Act are illegal and unsustainable. The Debts
Recovery Tribunal found that the applicant has not proved
the procedural irregularity alleged. The Tribunal
consequently dismissed SA No.34/2023 as per Ext.P4 order.
8. Aggrieved by Ext.P4 order, the petitioner has filed
Ext.P5 appeal invoking Section 18 of the SARFAESI Act.
According to the petitioner, Diary number has been assigned
to the appeal and stay petition. If in the meanwhile, pending
consideration of the statutory appeal by the Appellate
Tribunal, further coercive proceedings are taken against the
petitioner, the petitioner will be put to hardship. In the
circumstances, it would be only just and proper that the
OP(DRT) is disposed of with appropriate directions.
The OP(DRT) is disposed of directing the Debts
Recovery Appellate Tribunal, Chennai to consider and pass
appropriate orders on Ext.P6 IA filed by the petitioner
seeking stay of all further proceedings against the petitioner
under the SARFAESI Act. In the meanwhile, if the petitioner
remits an amount of ₹50 lakhs within a period of one month,
coercive proceedings against the petitioner shall stand
deferred till the Appellate Tribunal passes final orders on
Ext.P6 stay petition.
Sd/-
N. NAGARESH, JUDGE
aks/15.05.2024
APPENDIX OF OP (DRT) 88/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED
16.07.2022 IN CMP NO.1589 OF 2022 ON
THE FILE OF THE LEARNED CHIEF JUDICIAL
MAGISTRATE COURT KASARAGOD
Exhibit P2 TRUE COPY OF THE JUDGEMENT DATED
15.09.2022 IN WP (C). NO. 29334 OF
2022 ON THE FILE OF THE HON'BLE HIGH
COURT OF KERALA
Exhibit P3 TRUE COPY OF THE ORDER DATED
25.01.2023 IN IA 187 OF 2023 IN SA 34
OF 2023
Exhibit P4 TRUE COPY OF THE FINAL ORDER DATED
Exhibit P5 TRUE COPY OF THE APPEAL FILED BEFORE
THE DEBT RECOVERY APPELLATE TRIBUNAL
VIDE DIARY NO. 284/2024 ON 21.02.2024
Exhibit P6 TRUE COPY OF THE STAY PETITION FILED
BEFORE THE DEBT RECOVERY APPELLATE
TRIBUNAL 21.02.2024
Exhibit P7 TRUE COPY OF THE NOTICE DATED
07.02.2024 ISSUED BY THE ADVOCATE
COMMISSIONER APPOINTED BY THE CJM
COURT KASARGODE.
