Kerala High Court
Shine P Jacob vs The Debt Recovery Tribunal €“Ii ... 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. 82 OF 2024
AGAINST THE ORDER DATED 09.02.2024 IN I.A.NO.156 OF 2024
IN SA NO.49 OF 2022 OF DEBT RECOVERY TRIBUNAL-2,
ERNAKULAM
PETITIONER/APPLICANT:
SHINE P JACOB
AGED 52 YEARS, S/O P.M JACOB,
POOVANNUMMOOTTIL HOUSE, T B JUNCTION,
PUNALUR P.O, KOLLAM, PIN - 691305.
BY ADVS.
ALEXANDER JOSEPH
AKHILASREE BHASKARAN
ANTONY NIKHIL REMELO
RESPONDENTS/TRIBUNAL AND DEFENDANTS:
1 THE DEBT RECOVERY TRIBUNAL -II, ERNAKULAM
REPRESENTED BY ITS REGISTRAR, KSHB ,
PANAMPILLY NAGAR, ERNAKULAM PIN - 682036.
2 THE AUTHORISED OFFICER/CHIEF MANAGER
THE SOUTH INDIAN BANK, REGIONAL OFFICE,
YWCA BUILDING, MG ROAD, STATUE,
THIRUVANATHAPURAM, PIN - 695014.
3 THE BRANCH MANAGER
THE SOUTH INDIAN BANK
PATHANAPURAM BRANCH, PATHANAPURAM,
KOLLAM DISTRICT PIN - 689695.
4 THE CHAIRMAN
THE SOUTH INDIAN BANK, HEAD OFFICE,
TRICHUR, PIN - 680001.
O.P.(DRT) No.82/2024
:2:
BY ADVS.
SRI.SUNIL SHANKAR A
SMT.VIDYA GANGADHARAN
SMT.SANDHRA.S
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.82/2024
:3:
N. NAGARESH, J.
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O.P.(DRT) No.82 of 2024
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Dated this the 20th day of May, 2024
JUDGMENT
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IA No.156/2024 filed by the petitioner in SA
No.49/2022 on the files of the Debts Recovery Tribunal-II,
Ernakulam seeking to appoint an Advocate Commissioner
and a qualified Structural Engineer to conduct local
investigation of the property described in Annexure-A4
possession notice and Annexure-A11 sale notice, stands
dismissed as per Ext.P10 order dated 09.02.2024 of the
Tribunal. The petitioner is aggrieved by Ext.P10.
2. The petitioner, who was doing business in sale of
used cars, availed financial assistance from the 3 rd
respondent. Due to the Covid-19 pandemic, the business of
the petitioner collapsed. The Bank initiated recovery
proceedings under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002. Ext.P1 possession notice was issued on 24.01.2022.
3. The petitioner filed SA No.49/2022 challenging the
possession notice. The Advocate Commissioner appointed
under Section 14 took possession of the property on
17.08.2023. According to the petitioner, 5.20 Ares of
property consisted of a five storied building in the heart of
Punalur town, by the side of Kallada river.
4. The petitioner submits that consequent to rain
water and torrential rains, the retaining wall of the building by
the side of Kallada river was destroyed. The Bank did not
take any interest to protect the property. The structural
strength of the building weakened. Cracks in the foundation
structure of the building are visible.
5. The petitioner issued Ext.P3 lawyer notice dated
22.11.2023 requiring to protect and take steps to maintain
the property. The Debts Recovery Tribunal passed Ext.P4
order dated 21.12.2023 in IA No.3888/2023. The petitioner
filed appeal before the Debts Recovery Appellate Tribunal
challenging sale notice. As there were no bidders, sale did
not materialise and the appeal filed by the petitioner was
rendered infructuous.
6. The 2nd respondent issued notice dated
30.12.2023 notifying auction sale afresh. The petitioner filed
IA No.155/2024 for amending the SA challenging the fresh
auction sale notice. The petitioner also filed IA No.156/2024
seeking to appoint Advocate Commissioner and Structural
Engineer to conduct local investigation. The Tribunal
dismissed the application for appointment of Advocate
Commissioner as per Ext.P10 order dated 09.02.2024.
7. The petitioner submits that the respondents are
bound to protect the property in view of Rule 8(3) of the
Security Interest (Enforcement) Rules, 2002. It is necessary
to ascertain structural strength of the building before selling
the property. Ext.P10 order rejecting the commission
application is illegal. Ext.P10 amounts shutting out the best
evidence. Hence, the petitioner seeks to set aside Ext.P10
order and to direct the Tribunal to depute Advocate
Commissioner and Structural Engineer for inspection of the
property.
8. Respondents 2 and 3 resisted the OP(DRT) filing
counter affidavit. The respondents submitted that the
averment that they did not take step to protect the property
from flood, is without any merit. The petitioner had inducted
a third party into the property without the knowledge of the
Bank. The said party has modified the property and was
running a restaurant in the property. The third party, at the
time of eviction, removed the interior works done. The
OP(DRT) is without any merit, contended the respondents.
9. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing respondents
2 and 3.
10. The allegation of the petitioner is that 5.20 Ares of
land mortgaged by him has a five storied commercial
building. After taking over of the property by the Bank, the
retaining wall of the building washed away. The building is
now under the threat of collapse. Therefore, the petitioner
filed application for appointment of Advocate Commissioner
and Structural Engineer.
11. After considering the facts of the case, the Debts
Recovery Tribunal has rejected the application. The Tribunal
found that similar question was raised by the applicant while
considering IA No.3888/2023. The Tribunal found in the said
IA that the physical possession of the secured asset was
taken on 17.08.2023. The petitioner did not raise such
contention earlier. It was after issuance of sale notice that
the petitioner has issued a lawyer notice raising the issue.
Maintenance of retaining wall of the building has no
connection with the sale.
12. As the Tribunal has already come to a conclusion
in this regard, it was held that the issue has attained finality
which is not challenged by the petitioner in any forum. The
Tribunal found that appointment of Advocate Commissioner
and Structural Engineer is not necessary before putting the
property for sale and for adjudicating the Securitisation
Application.
13. Going through Ext.P10 order, I find that the
Tribunal has considered the issue raised by the petitioner
relating to appointment of Advocate Commissioner. The
Tribunal noted that the petitioner has raised the issue only
after the Bank took physical possession of the property. The
petitioner had no such case earlier. The Tribunal had
already taken a view in this regard in IA No.3888/2023. In
the afore facts of the case, I do not find any illegality or
irregularity in Ext.P10 order.
The OP(DRT) is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/14.05.2024
APPENDIX OF OP (DRT) 82/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE POSSESSION NOTICE
DATED 24/01/2022 ISSUED BY THE 2ND
RESPONDENT.
Exhibit P2 TRUE COPY OF THE NOTICE DATED
17/06/2022 ISSUED BY THE ADVOCATE
COMMISSIONER TO THE PETITIONER.
Exhibit P3 TRUE COPY OF THE LAWYER NOTICE DATED
22/11/2023 ISSUED BY THE PETITIONER TO
THE RESPONDENTS 2-4.
Exhibit P4 TRUE COPY OF THE ORDER DATED
21/12/2023 IN IA NO 3888/2023 IN SA
49/2022.
Exhibit P5 TRUE COPY OF THE IA NO 155/2024
( EXCLUDING ANNEXURES ) IN SA 49/2022
(APPLICATION FOR AMENDMENT) BEFORE THE
1ST RESPONDENT.
Exhibit P6 TRUE COPY OF IA NO 156/2024 IN SA NO
49/2022 FILED BEFORE THE 1ST
RESPONDENT (APPLICATION FOR
APPOINTMENT OF ADVOCATE COMMISSIONER
AND QUALIFIED STRUCTURAL ENGINEER TO
CONDUCT LOCAL INVESTIGATION ).
Exhibit P7 TRUE COPY OF THE JUDGMENT DATED
17/01/2024 IN OP (DRT) NO 25/2024 OF
THIS HON'BLE COURT.
Exhibit P8 TRUE COPY OF THE ORDER DATED
24/01/2024 IN SA NO 49/2022 DOWNLOADED
FROM THE WEBSITE OF THE 1ST RESPONDENT
TRIBUNAL.
Exhibit P9 TRUE COPY OF THE SA NO. 49/2022 OF THE
1ST RESPONDENT AS AMENDED AS PER
ORDERS DATED 23/09/2022 IN I.A NO.
1917/2022 AND ORDER DATED 20/12/2023
IN IA NO 3891/2023 AND ORDER DATED
( EXCLUDING ANNEXURES).
Exhibit P10 TRUE COPY OF THE ORDER DATED
09/02/2024 IN IA NO 156/2024 IN SA NO
49/2022 OF THE 1ST RESPONDENT
TRIBUNAL.
