R. Ananthakumar vs Senior Manager
2024 Latest Caselaw 33167 Ker

Kerala High Court

R. Ananthakumar vs Senior Manager on 15 November, 2024

                                                       2024:KER:86196
OP (DRT) 339/2024
                                -1-

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

             THE HONOURABLE MR.JUSTICE BASANT BALAJI

    FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946

                      OP (DRT) NO. 339 OF 2024


PETITIONER/S:
           R. ANANTHAKUMAR,
           AGED 62 YEARS
           S/O V. RAMACHANDRA REDDIAR, DHANAMS, CURSON ROAD,
           KOLLAM PRESENTLY RESIDING AT 49/762, ARYACHAMVEEDU,
           KOTTAMUKKU, CUTCHERRY P.O, KOLLAM, PIN - 691013

           BY ADVS.
           SABU GEORGE
           P.B.SUBRAMANYAN
           MANU VYASAN PETER
           P.B.KRISHNAN (SR.)


RESPONDENT/S:

     1     SENIOR MANAGER,
           UNION BANK OF INDIA, KOLLAM BRANCH, FATIMA BUILDING,
           P.B. NO.182, BEACH ROAD, KOLLAM, PIN - 691001

     2     THE AUTHORIZED OFFICER,
           UNION BANK OF INDIA, REGIONAL OFFICE, UNION BANK
           BHAVAN, POST BOX NO.307, M.G.ROAD STATUE,
           THIRUVANANTHAPURAM, PIN - 695001

     3     DR.MUMTHAS,
           CHANDRALAYAM M.C.R.A.-77, NELLIMUKKU, KOLLAM-12,
           REPRESENTED BY POA HOLDER M.SHAHID AHMED, ADVOCATE
           CHANDRALAYAM, M.C.R.A.-77, KOLLAM-12. ALSO AT, HOUSE
                                                             2024:KER:86196
OP (DRT) 339/2024
                                     -2-

             NO.99, CURZON NAGAR, CURZON ROAD, KOLLAM, PIN - 691013

     4       M.SHAHID AHMED,
             CHANDRALAYAM, NELLIMUKKU, KOLLAM-12 ALSO AT, HOUSE
             NO.99, CURZON NAGAR, CURZON ROAD, KOLLAM, PIN - 691013

     5       RAJAMMAL,
             CHANDRALAYAM, NELLIMUKKU, KOLLAM, PIN - 691012

     6       R. DHANALAKSHMI,
             PROPRIETRIX, M/S. SEEMATI TEXTILES, DHANAMS, CURZON
             ROAD, KOLLAM, PRESENTLY AT HOUSE NO.49/762, ARAYACHAM
             VEEDU, KOTTAMUKKU, CUTCHERRY P.O, KOLLAM, PIN - 691013

     7       R. VEERESH KUMAR,
             DHANAMS, CURZON ROAD, KOLLAM PRESENTLY RESIDING AT
             HOUSE NO.49/762, ARAYACHAM VEEDU, KOTTAMUKKU,
             CUTCHERRY P.O, KOLLAM, PIN - 691013



OTHER PRESENT:

             SC SRI. A.S. P. KURUP


     THIS    OP   (DEBT   RECOVERY    TRIBUNAL)   HAVING   COME   UP   FOR
ADMISSION ON 15.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                                         2024:KER:86196
OP (DRT) 339/2024
                                         -3-



                                     JUDGMENT

(Dated this the 15th day of November 2024)

The petitioner is the applicant No.4 in IA No.659 of 2024 in

RA No.25 of 2020 on the file of the Debt Recovery Appellate

Tribunal, Chennai (for short, "the DRAT"). Notice under Section

13(2) of the Securitisation and Reconstruction of Financial Assets and

Enforcement of Securities Interest Act, 2002 (for short, "the

SARFAESI Act") was issued to the petitioner on 31.05.2006 claiming

an amount of Rs.1,95,42,886/- with future interest. A possession

notice under Section 13(4) of the SARFAESI Act was also issued.

Against the proceedings under Section 13(4), the petitioner

approached the Debt Recovery Tribunal ("for short, the DRT") by

filing SA No.66 of 2006. The DRT, by order dated 02.12.2016,

dismissed the S.A. Against this, the petitioner approached this Court

by filing O.P (DRT) No.120 of 2016, which was allowed by this

Court on 16.10.2017 and remanded the matter for fresh consideration

before the DRT. After the remand, the DRT considered the 2024:KER:86196 OP (DRT) 339/2024

application and again dismissed the same on 29.09.2018.

2. The petitioner again approached this Court by filing

O.P (DRT) No.122 of 2018, and by judgment dated 13.11.2018, this

Court relegated the petitioner to prefer an appeal before the DRAT

in terms of Section 18 of the SARFAESI Act. Accordingly, the

appeal was preferred. When the matter was taken by the DRAT, the

question of pre-deposit, which is mandatory under Section 18, was

considered, and by order dated 21.03.2019, the DRAT calculated the

pre-deposit based on the demand notice by finding that the amount

mentioned in Section 13(2) of the SARFAESI Act was Rs.1.95 Crores

in the year 2006 and the said amount had increased up to Rs.6

crores. Therefore, the 25% of the amount being Rs.2 crores has to be

deposited within four weeks.

3. Challenging the said order, the petitioner

approached this Court by filing W.P.(C) No.9331 of 2019 and an

interim order was passed by this Court staying all further

proceedings on the condition that the petitioner remits amounts of 2024:KER:86196 OP (DRT) 339/2024

Rs.1 crore before the DRAT. The petitioner, thereafter, deposited

Rs.97 lakhs before the DRAT. By judgment dated 18.12.2019, this

Court disposed of the writ petition declaring that the petitioner need

not make any pre-deposit by calculating the amount by adding the

interest over the amount demanded under Section 13(2) of the

SARFAESI Act.

4. Challenging the judgment, Writ Appeal

Nos.233/2020 and 242/2020, 300/2020 and 401/2020 were filed. All

the appeals were heard together, and Ext.P5 common judgment was

passed, by which the impugned judgment of the learned Single

Judge was set aside, and it was held that the Appellate Tribunal was

right in directing the borrowers to deposit Rs.2 crores, which is 25%

of the total amount due.

5. Meanwhile, the Bank filed O.A No.56/2008 before

the DRT-2, Ernakulam, and the same is pending consideration. The

petitioner preferred Review Petition No.979 of 2022 in W.A No.242

of 2020 seeking adjustment of the balance amount of Rs.1 crore to 2024:KER:86196 OP (DRT) 339/2024

be deposited before the DRAT because the Bank already adjusted

Rs.3 crores, which was given as a Bank Guarantee. The said Review

Petition was dismissed by this Court.

6. The petitioner filed SLP Nos.12022-12023 of 2023,

and by order dated 04.10.2024, the Apex Court disposed of the SLPs

as Ext.P7. As per Ext.P7, the Apex Court, having heard the parties,

disposed of the SLPs, giving the appellants six weeks to make further

pre-deposit of Rs.1 crore or 25% of the amount to be deposited in

terms of the proviso to Section 18 of the SARFAESI Act. It was also

made clear that an amount of Rs.97 lakhs already deposited will be

duly considered to determine the 25% deposit.

7. The petitioner, therefore, filed I.A No.659 of 2024

in R.A No.25 of 2020 as Ext.P8 for a direction to the Bank to

furnish the statement of accounts of the appellants and pass orders

in tune with the orders passed by the Apex Court.

8. DRAT passed Ext.P10, which is the gist of the

order, and Ext.P11 is the order passed by the DRAT dated 2024:KER:86196 OP (DRT) 339/2024

06.11.2024 by which the DRAT held as follows:

12. Order of this Tribunal was reiterated by Hon'ble Division Bench of Kerala High Court in Writ Appeal WA 242/2020.

Petitioners/Appellants have deposited Rs.97,00,000/- and odd, in compliance of Order passed by Hon'ble High Court of Kerala in WP(C) No.9331/2019. There is no ambiguity with regard to the amount to be paid by Petitioners/Appellants. It must be Rs.1 Crore as ordered by Hon'ble Supreme Court. Petitioners/Appellants were granted six weeks time to make this deposit.

13. In view of my foregoing observations and discussions, it is held that there is no need for production of statement of accounts by Respondent Bank. Petitioners/Appellants are directed to comply with the Order of Hon'ble Supreme Court in SLP(C) Nos. 12022- 12023/2023 dated Order on 04.10.2024, within the time prescribed by Hon'ble Supreme Court.

9. Sr. Counsel Sri. P.B Krishnan, appearing for the

petitioner, argues that the Apex Court has given an option to the

petitioner either to pay a further deposit of Rs.1 crore or 25% of

the amount to be deposited in terms of the proviso to Section 18 of

the SARFAESI Act. The total amount would be Rs.6 crores, and 25%

will be Rs.1,50,00,000/-.

10. The counsel further argues that since Rs.97 lakhs

have already been deposited, as ordered by this Court, the petitioner

is only to deposit Rs.53 lakhs more to comply with the 25% of the 2024:KER:86196 OP (DRT) 339/2024

amount to be remitted by the petitioner.

11. Sri.A.S.P Kurup, the Standing Counsel for

respondent-Bank, vehemently opposed the same and submitted that

the DRAT found that the amount to be deposited is Rs.2 crores,

which a Division Bench of this Court has affirmed. The SLPs are

filed only against the Review Petition and not against the judgment

of the Division Bench. So the judgment of the Division Bench

attained finality, and this Court confirms the amount ordered by the

DRAT as Rs.2 crores. Therefore, the petitioner cannot claim that the

amount to be deposited is Rs.1,50,00,000/-.

12. A Perusal of Ext.P7 order of the Apex Court would

show that an option was given to the petitioner either to pre-deposit

Rs.1 crore or 25% of the amount to be deposited in terms of the

proviso to Section 18 of the SARFAESI Act. Since there is already a

deposit of Rs.97 lakhs, the petitioner is permitted to pay an amount

of Rs.53 lakhs to make the 25% of Rs.6 crores. Since the last date,

as ordered by the Apex court, is today (15.11.2024), the petitioner is 2024:KER:86196 OP (DRT) 339/2024

given time till 18.11.2024 at 5 p.m. to make the payment since

today is a holiday for the Banks and the DRAT. If the amount is

deposited, the DRAT will consider whether it is in tune with the

Apex Court's directions and covers 25% of the amount as ordered.

The DRAT is free to adjudicate the matter, and all the contentions

are left open to be decided by the DRAT, and the DRAT shall take a

decision untrammelled by the observations passed in Ext.P11.

The writ petition is disposed of as above.

Sd/-

BASANT BALAJI JUDGE

JS 2024:KER:86196 OP (DRT) 339/2024

APPENDIX OF OP (DRT) 339/2024

PETITIONER EXHIBITS

Exhibit-P1 A TRUE COPY OF THE ORDER DATED 29.09.2018 IN T.S.A NO.10/2016 (SA NO.66/2006) BEFORE THE DEBTS RECOVERY TRIBUNAL-II, ERNAKULAM

Exhibit-P2 A TRUE COPY OF THE ORDER DATED 29.09.2018 IN I.A.NO.179 OF 2016 IN T.S.A NO.10/2016 (SA NO.66/2006) BEFORE THE DEBTS RECOVERY TRIBUNAL-II, ERNAKULAM

Exhibit-P3 A TRUE COPY OF THE COMMON PROCEEDINGS DATED 21-03-2019 BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI WHICH CONTAINS THE ORDERS PASSED IN I.A NO.1218/2018 IN AIR 690 OF 2018 AND IN AIR 691 OF 2018

Exhibit-P4 A TRUE COPY OF THE COMMON JUDGMENT, DATED 18-12-2019 IN WPC NO. 9331/2019 AND WP(C) NO. 11506/2019 BEFORE THIS HONOURABLE COURT

Exhibit-P5 A TRUE COPY OF THE COMMON JUDGMENT, DATED 06-10-2022 IN W.A NOS. 233/2020, 242/2020, 300/2020 AND 401/2020 BEFORE THIS HON'BLE COURT

Exhibit-P6 A TRUE COPY OF THE JUDGMENT, DATED 05-04- 2023 IN RP NO. 979/2022 IN W.A NO. 242/2020 BEFORE THIS HON'BLE COURT

Exhibit-P7 A TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT, DATED 04-10-2024 IN SLP(C) NOS. 12022 -12023 OF 2023

Exhibit-P8 A TRUE COPY OF I.A NO.659 OF 2024 IN RA NO.25 2024:KER:86196 OP (DRT) 339/2024

OF 2020 BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, 28-10-2024

Exhibit-P9 A TRUE COPY OF THE COUNTER AFFIDAVIT, DATED 02-11-2024 FILED BY RESPONDENTS 1 AND 2 IN I.A NO.659 OF 2024 IN RA NO.25 OF 2020 BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL

Exhibit-P10 A TRUE COPY OF THE PROCEEDINGS DATED 06-11- 2024 BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI IN I.A NO.659 OF 2024 IN RA(SA) NO.25 OF 2020

Exhibit P11 A TRUE COPY OF THE ORDER DATED 06-11-2024 IN I.A NO.659 OF 2024 IN RA(SA) NO.25 OF 2020 BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI