Kerala High Court
M/S. Annam Steels Pvt. Ltd vs M/S. Canara Bank Ltd on 3 September, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
WP(C) Nos.28425/2024, 28988/2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
WP(C) NO. 28425 OF 2024
PETITIONER/S:
1 M/S. ANNAM STEELS PVT. LTD
11/40E, FASHION TOWER, CHEROOTTY ROAD, KOZHIKODE- REPRESENTED BY
ITS MANAGING DIRECTOR E.T. FIROZ., PIN - 673001
2 SHRI. E.T. FIROZ.
AGED 52 YEARS
S/O E.T. MUHAMMED BASHEER SOUMYA, 2/1788A, FLORICAN ROAD,
KALATHIL AVENUE, CIVIL STATION, MALAPPARAMABU, KOZHIKODE, PIN -
673030
BY ADVS.
MATHEWS K. UTHUPPACHAN
JOSEPH MARKOSE (SR.)
B.RAHUL KRISHNAN
RESPONDENT/S:
1 M/S. CANARA BANK LTD,
CHEROOTTY ROAD BRANCH, COURT ROAD, KOZHIKODE-REPRESENTED BY ITS
CHIEF MANAGER AND AUTHORISED OFFICER., PIN - 673001
2 M/S. PUNJAB NATIONAL BANK LTD
EROTH CENTRE, BANK ROAD, KOZHIKODE-REPRESENTED BY ITS CHIEF
MANAGER, PIN - 673001
3 IGNIVA PS PRIVATE LIMITED,
CALICUT TRADE CENTRE, SAROVARAM BIO PARK, ERANHIPALAM,
WP(C) Nos.28425/2024, 28988/2024
2
2024:KER:66461
KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR NIJESH
PUTHELATH., PIN - 673006
4 SRI. MUHAMMED FAYAS,
S/O. KUNHI MOIDEEN KUTTY, FLAT NO.12B, SKYLINE OCEANIC, OCEANIC,
BEACH ROAD, KOZHIKODE, PIN - 673032
5 SRI. ANNEES ADAM K.M.,
S/O. T. MUNEEER, KOYAPPATHODI VILLA, KRISHNAN NAIR ROAD,
MALIKADAVU, NEAR GOVT ITI, KOZHIKODE, PIN - 673010
6 SRI. SYED MUHAMMED THAYYIL,
S/O. THAYYIL KHADAR HAJI, THAYYIL HOUSE, KATTACHIRA, B.P. ANGADI
(P.O.), VENGALOOR, TIRUR, MALAPPURAM, PIN - 676102
7 SHRI. V. ABDUL RAZZACK
S/O. MUHAMMED, BARIKODAN HOUSE, ERNAD, MALAPPURAM, PIN - 673639
8 SRI. ABDUL LATHEEF,
RAFA PARK HOUSE, THALASSERY, KANNUR, PIN - 670101
9 DR. T. AHAMMED THOTTIYIL,
THOTTIYIL HOUSE, KOTTAKKAL P.O., MALAPPURAM, PIN - 676503
10 SRI. P.K. SIVADASA MENON
LAKSHMI KRIPA, NORTH PARUR, ERNAKULAM, PIN - 673032
BY ADVS. C.Ajith Kumar, Praveen Hariharan
THIS WRIT PETITION (CIVIL) HAVING RESERVED ON 22.08.2024, ALONG WITH
WP(C).28988/2024, THE COURT ON 03.09.2024 DELIVERED THE FOLLOWING:
WP(C) Nos.28425/2024, 28988/2024
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2024:KER:66461
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
WP(C) NO. 28988 OF 2024
PETITIONER/S:
1 SRI. MUHAMMED FAVAS,
S/O. KUNHI MOIDEEN KUTTY, FLAT NO.12B, SKYLINE OCEANIC, OCEANIC,
BEACH ROAD, KOZHIKODE, PIN - 673032
2 SRI. ANNEES ADAM K.M.,
S/O. T. MUNEEER, KOYAPPATHODI VILLA, KRISHNAN NAIR ROAD,
MALIKADAVU, NEAR GOVT ITI, KOZHIKODE, PIN - 673010
3 SRI. SYED MUHAMMED THAYYIL,
S/O. THAYYIL KHADAR HAJI, THAYYIL HOUSE, KATTACHIRA, B.P. ANGADI
(P.O.), VENGALOOR, TIRUR, MALAPPURAM, PIN - 676102
4 SHRI. V. ABDUL RAZZACK,
S/O. MUHAMMED, BARIKODAN HOUSE, ERNAD, MALAPPURAM, PIN - 673639
5 SRI. ABDUL LATHEEF,
RAFA PARK HOUSE, THALASSERY, KANNUR-, PIN - 670101
6 DR. T. AHAMMED THOTTIYIL,
THOTTIYIL HOUSE, KOTTAKKAL P.O., MALAPPURAM, PIN - 676503
7 SRI. P.K. SIVADASA MENON
LAKSHMI KRIPA, NORTH PARUR, ERNAKULAM, PIN - 673032
BY ADVS.
MATHEWS K. UTHUPPACHAN
B.RAHUL KRISHNAN
JOSEPH MARKOSE (SR.)
WP(C) Nos.28425/2024, 28988/2024
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RESPONDENT/S:
1 M/S. CANARA BANK LTD,
CHEROOTTY ROAD BRANCH, COURT ROAD, KOZHIKODE-673001REPRESENTED
BY ITS CHIEF MANAGER AND AUTHORISED OFFICER., PIN - 673001
2 M/S. PUNJAB NATIONAL BANK LTD,
EROTH CENTRE, BANK ROAD, KOZHIKODE-REPRESENTED BY ITS CHIEF
MANAGER, PIN - 673001
3 IGNIVA PS PRIVATE LIMITED,
CALICUT TRADE CENTRE, SAROVARAM BIO PARK, ERANHIPALAM,
KOZHIKODE, REPRESENTED BY ITS MANAGING DIRECTOR NIJESH
PUTHELATH, PIN - 673006
4 M/S. ANNAM STEELS PVT. LTD
11/40E, FASHION TOWER, CHEROOTTY ROAD, KOZHIKODE- REPRESENTED BY
ITS MANAGING DIRECTOR E.T. FIROZ., PIN - 673001
5 SHRI. E.T. FIROZ.
S/O E.T. MUHAMMED BASHEER SOUMYA, 2/1788A, FLORICAN ROAD,
KALATHIL AVENUE, CIVIL STATION, MALAPPARAMABU, KOZHIKODE, PIN -
673030
BY ADV C.Ajith Kumar
THIS WRIT PETITION (CIVIL) HAVING RESERVED ON 22.08.2024, ALONG WITH
WP(C).28425/2024, THE COURT ON 03.09.2024 DELIVERED THE FOLLOWING:
WP(C) Nos.28425/2024, 28988/2024
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JUDGMENT
[WP(C) Nos.28425/2024, 28988/2024]
Heard Mr Joseph Markos learned Senior Counsel, assisted by
Mr Mathews K Uthuppachan learned Counsel for the petitioners,
and Mr C Ajith Kumar learned Counsel for the respondent.
2. These two writ petitions have been filed by M/s Annam
Steels Pvt Ltd, its Managing Director and other Directors
impugning the orders passed by the Debts Recovery Appellate
Tribunal at Chennai dated 31.07.2024 in R.A.(S.A.): 5/2024
whereby the said appeal has been dismissed with the following
observations:
"10. As rightly pointed out by Advocate for Bank (s), judgement of
Hon'ble High Court dated 04.12.2023, is complete answer to all
grounds urged in this Appeal questioning the Order of DRT dated
08.06.2023 in SA 76/2023.
11. On a scrutiny of entire material, I have no hesitation in holding
that objections raised on behalf of Appellants with regard to
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impugned Order dated 08.06.2023, are not at all tenable, and they
have no legal stand, as said issue is already dissolved by Hon'ble High
Court in Writ Petition filed by Appellants themselves.
12. In view of my foregoing discussion, it is held that, the Appeal is
completely devoid of merits and liable to be dismissed.
13. In the result, Appeal in R.A (S.A): 5/2024 is dismissed with costs.
All pending IAs, if any, stand closed."
3. Before dealing with the merits of the writ petitions, it
would be apt to take note of the proceedings initiated by the
petitioners before this Court and the Debts Recovery Tribunal.
Case Number Particulars of Case
W.P.(C) No.21892/2021 After adjudication of claim by DRT in T.A. 44/2017, whether SARFAESI
proceedings can continue on the basis of prior Section 13(2) notice issued,
or a fresh notice under Section 13(2) of SARFAESI is required - by judgment
dated 03.01.2022, the Writ Petition stands dismissed holding that no fresh
notice is required.
W.A. 174/2022 Against judgment in W.P.(C) 21892/2021, vide judgment dated 21.03.2022,
the Writ Appeal stands dismissed.
W.P.(C) No.24561/2022 Challenge with respect to the E-Auction of the secured asset, pointing out
illegality in the bid submitted by the auction purchaser. As per interim
order dated 29.07.2022, at the admission stage, confirmation of sale
scheduled on 30.07.2022 was deferred on condition to remit a sum of Rs.1
crore on 30.07.2022 and a further amount of Rs.6.9 crores on or before
10.08.2022. - The said interim direction was complied. Later on vide
interim order dated 01.09.2022 in the Writ Petition, the deferment of the
confirmation of the sale, as per order dated 29.07.2022 in the Writ Petition,
was vacated after hearing the auction purchaser - The Writ Petition was
WP(C) Nos.28425/2024, 28988/2024
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disposed finally vide judgment dated 04.01.2023, holding that the E-auction
proceedings conducted by the Bank, is in accordance with law.
Writ Appeal 1355/2022 Against Interim Order dated 01.09.2022 in W.P.(C) 24561/2022 - Did not
interfere with the interim order passed, but made a modification to the
observation with regard to the challenge of the sale notice in accordance
with law, directing the appellants to seek for early hearing of the Writ
Petition.
Writ Appeal 26/2023 Against judgment in W.P.(C) 24561/2022, vide judgment dated 25.01.2023,
the Writ Appeal stands disposed off, directing the appellants to invoke their
statutory remedy against the E-Auction challenge, finding that the Writ
Jurisdiction invoked is not proper, in view of the statutory remedy
available.
S.A. 76/2023 Before DRT-1, Ernakulam, challenging E-Auction, in pursuance to the
judgment in Writ Appeal 26/2023. As per order dated 09.03.2023 in I.A.
No.509/2023 in the S.A., stay petition has been dismissed - Later on, as per
the final order dated 08.06.2023, S.A. 76/2023 stands dismissed.
O.P.(DRT) 108/2023 Filed for interim protection till certified copy of interim order in I.A.
509/2023 passed by DRT is obtained - vide judgment dated 20.03.2023, the
O.P. (DRT) stands dismissed as infructuous.
O.P.(DRT) 123/2023 To set aside the order in I.A. No.509/2023 in S.A. 76/2023. Disposed off
directing the DRT to pass final orders in the S.A. within one month
recording the submission of the Bank that the issue of recovery process will
not be precipitated till such time.
W.P.(C) 20407/2023 Against the final order dated 08.06.2023 in S.A. 76/2023, seeking for a
direction to the DRAT, Chennai for expeditious consideration of the
statutory appeal along with stay petition and waiver petition. The Writ
Petition was disposed off vide judgment dated 05.07.2023, directing the
DRAT to consider the stay petition and waiver petition within one month.
W.P.(C) 42052/2023 Aggrieved by the interim order passed by DRAT in the waiver petition I.A.
294/2023 in AIR 773/2023, directing the petitioners to pay pre-deposit for
Rs.3.95 crores, being 50% of the sale certificate amount, on or before
14.12.2023, for consideration of appeal, against which Writ Petition filed,
seeking for extension of time - vide judgment dated 14.12.2023 Writ
Petition disposed off granting time up to 22.12.2023, for compliance of the
order.
WP(C) Nos.28425/2024, 28988/2024
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W.P.(C) 20052/2024 Challenge against certain item of properties put for E-auction by the
recovery officer, in pursuance to the recovery certificate issued in T.A
44/2017. Vide judgment dated 13.06.2024 dismissed the writ, directing the
petitioners to approach the Bank.
W.P.(C) 28505/2024 Aggrieved by the final order passed in R.A. 5/2024 by DRAT Chennai - Writ
filed for interim protection till DRAT issues the certified copy of the final
order - Dismissed as withdrawn.
4. As of today, the total outstanding of the respondent
Canara Bank in respect of the loans advanced to the petitioner is
around Rs.251 crores. The detailed facts are not mentioned herein
for the sake of brevity as the facts have been taken note of in the
Order dated 08.06.2023 passed by the Debts Recovery Tribunal in
S.A. No.76/2023 filed by the petitioners. However, it is relevant to
take note of the order passed by the learned Single Judge in
W.P.(C) No.24561/2022. Vide interim order dated 29.07.2022, the
learned Single Judge directed the petitioners to deposit Rs.1 crore
by 30.07.2022 and a further sum of Rs.6.90 crore by 10.08.2022. On
an application filed by the respondent Bank for vacating the
WP(C) Nos.28425/2024, 28988/2024
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interim order, the learned Single Judge vide order dated 01.09.2022
vacated the interim order.
4.1 Aggrieved by the Order dated 01.09.2022, the petitioners
filed W.A. No.1355/2022. The Division Bench vide order dated
06.09.2022 directed the parties to appear for Mediation on
14.09.2022. As the Mediation failed, the Division Bench proceeded
to dispose of the Writ Appeal directing the writ petition itself to
be disposed of on merits. The petitioners filed a Special Leave
Petition, SLP No.20304/2022, before the Supreme Court against
the Judgment passed by the Division Bench in W.A. No.1355/2022.
However, the said Special Leave Petition came to be dismissed by
the Supreme Court vide order dated 18.11.2022 with the
observation that the learned Single Judge should decide the writ
petition uninfluenced by the judgment of the Division Bench.
4.2 The learned Single Judge vide Judgment dated 04.01.2023
dismissed the writ petition with a direction to the Bank to return
WP(C) Nos.28425/2024, 28988/2024
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the amount deposited by the petitioners to them. Aggrieved by
the said Judgment, the petitioners preferred W.A. No.26/2023, and
the Bank also preferred W.A. No.128/2023. Vide Judgment dated
25.01.2023, the Division Bench allowed W.A. No.26/2023 and set
aside the Judgment of the learned Single Judge and granted three
weeks' time to the petitioners to approach the Debts Recovery
Tribunal under Section 17 of the SARFAESI Act 2002. The direction
of the learned Single Judge to return Rs.7.90 crores deposited by
the petitioners was also set aside. However, the request of the
Bank for appropriation of the amount was not allowed and the
same was ordered to be considered by the Debts Recovery
Tribunal subject to the outcome of the challenge to the sale.
5. Mr Joseph Markos learned Senior Counsel has raised
only one contention in this writ petition, i.e., Mr Yusuf Pangat, the
Promotor of the 3rd respondent Company, had paid EMD without
disclosing the fact that he was depositing the amount on behalf of
WP(C) Nos.28425/2024, 28988/2024
2024:KER:66461
the 3rd respondent Company. The 3rd respondent was
incorporated subsequent to the payment of the EMD. Therefore,
the confirmation of the sale in favour of the 3rd respondent
Company is against the SARFAESI Act and the Rules made
thereunder.
5.1 The said issue is squarely covered by the judgment of the
Supreme Court in the case of Jai Narain Parasrampuria (Dead) v.
Pushpa Devi Saraf1. Paragraphs 20 to 31 of the said judgment are
extracted hereunder:
"20. At the time when the property was released from the charge
held by State Bank of India, a notice in terms of Section 138 of the
Companies Act was issued by Shri Mohan Lal Saraf. In the registers
maintained by the Registrar of the Companies under Section 132 of
the Companies Act, it was shown that a charge on the said property
had been made in favour of State Bank of India.
21. Under the English Common Law, an unincorporated corporation
could not have become an owner of the property. The law in India,
however, is different.
(2006) 7 SCC 756
WP(C) Nos.28425/2024, 28988/2024
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22. Before we advert to the statutes operating in the field, in passing
we may notice a wholly untenable submission of Shri Sudhir
Chandra that an unregistered deed of sale only having been
executed in favour of the Company by Sarafs, no title passed to the
Company in view of Section 54 of the Transfer of Property Act.
Section 54 of the Transfer of Property Act, defines sale and provides
for a procedure as to how the same shall be made. It does not speak
of conveyance of ownership. Section 54 of the Transfer of Property
Act does not lay down a law as to whether in all situations an
apparent state of affairs as contained in a deed of sale would be
treated to be the real state of affairs. It does not bar a benami
transaction. There is no embargo in getting a property registered in
the name of one person; although the real beneficiary thereof would
be another.
23. Sections 15(h) and 19(e) of the Specific Relief Act, 1963 read as
under:
"15. Who may obtain specific performance. Except as otherwise
provided by this Chapter, the specific performance of a contract may
be obtained by-
* * *
(h) when the promoters of a company have, before its incorporation,
entered into a contract for the purposes of the company, and such
contract is warranted by the terms of the incorporation, the
company: Provided that the company has accepted the contract and
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has communicated such acceptance to the other party to the
contract.
* * *
19. Relief against parties and persons claiming under them by subsequent
title. Except as otherwise provided by this Chapter, specific
performance of a contract may be enforced against-
* * *
(e) when the promoters of a company have, before its incorporation
entered into a contract for the purpose of the company and such
contract is warranted by the terms of the incorporation, the
company:
Provided that the company has accepted the contract and
communicated such acceptance to the other party to the contract."
24. In terms of Section 15(h) of the Specific Relief Act, the promoters
of a company before its incorporation could enter into a contract for
the benefit of the company and such contract may be warranted by
the terms of incorporation of the company. The said provision is
subject to the proviso that the company should accept the said
transaction. In the instant case, indisputably it was done. Section
19(e) of the Act provides for grant of a decree of specific
performance of a contract against a company when the promoters
of a company before incorporation entered into a contract for the
purpose of the company and such contract is warranted by the terms
of incorporation. The said provision applies herein.
25. In Weavers Mills Ltd. v. Balkis Ammal¹ the Madras High Court
WP(C) Nos.28425/2024, 28988/2024
2024:KER:66461
clearly held that Section 19(e) of the Specific Relief Act carves out
an exception from the common law of England, stating: (AIR p. 470)
"While we accept the position that a promoter is neither an agent
nor a trustee of the company under incorporation, we are inclined
to think that in respect of transactions on behalf of it, he stands in
a fiduciary position. For the plaintiff Company Sections 92 and 94
of the Indian Trusts Act, 1882, were relied upon. It seems to us that
neither of these sections is of assistance to it. These sections, as we
think, contemplate transactions as between persons in existence.
In any case, it seems to us that no trust as defined by Section 3 of
the Act is brought about by the purchases made by the promoters.
The legal position of a promoter in relation to his acts, particularly
purchase of immovable properties on behalf of the company under
incorporation, is a peculiar one not capable of being brought into
any established or recognised norms of the law as to its character
as an agent or a trustee. But, at the same time, it is impossible, to
our minds, to deny that he does stand in a certain fiduciary
position in relation to the company under incorporation. When he
does certain things for the benefit of it, as for instance, purchase
of immovable properties, he is not at liberty to deny that benefit to
the company when incorporated. We are prepared to hold that in
such a case the benefit of the purchase will pass on to the company
when incorporated."
26. The said decision has been followed by a Division Bench of the
Andhra Pradesh High Court in Vali Pattabhirama Rao v. Sri Ramanuja
WP(C) Nos.28425/2024, 28988/2024
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Ginning & Rice Factory (P) Ltd.2 wherein it was held: (AIR pp. 184-85)
"Thus we hold that if the constitution of the partnership firm is
changed into that of a company by registering it under Part 9 of
present Act (Part 8 of previous Act), there shall be statutory vesting
of title of all the property of the previous firm in the newly
incorporated company without any need for a separate
conveyance."
27. The Company upon incorporation has accepted the contract and
communicated such acceptance to the other party. Besides that,
purchase of the property was for the purpose of the Company.
Submissions of Mr Sudhir Chandra that acquisition of a property for
the benefit of the Company must find place in the articles of
association of the Company, is wholly misplaced. What is meant by
acceptance of the contract by the Company which is to be warranted
by its incorporation, is that it is not ultra vires the purpose for which
the Company had been incorporated. The distinction sought to be
made by the learned counsel between Section 27 of the Specific
Relief Act, 1877 and Section 19 of the 1963 Act is not of much
significance. Under the 1877 Act, not only ratification and adoption
of the contract was mandatory, such contract was to be warranted
by the terms of the incorporation. The words "ratified and adopted"
have been dropped from the main section and in Section 19 of the
1963 Act, a proviso has been added that the company has accepted
the contract and communicated such acceptance to the other party
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of the contract. An express ratification of the contract, therefore, is
no longer warranted. In view of the fact that the Company, in the
suit filed against Verma, sought for a declaration that it was the
owner of the property, the same, in our opinion, would amount to
acceptance of the contract and communication thereof to the other
party thereto.
28. Reliance placed by the learned Senior Counsel for the respondent
on Shamsu Suhara Beevi v. G. Alex³ (SCC p. 76, para 11) is not apposite,
wherein it was held:
"On equitable considerations court cannot ignore or overlook the
provisions of the statute. Equity must yield to law."
In the said decision this Court was not concerned with the
interpretation of Section 19(e) of the Specific Relief Act.
29. The Transfer of Property Act does not prohibit an oral transfer.
The statute merely provides that if the value of the said property is
more than Rs 100 a registered document is required to be executed.
Section 5 of the Transfer of Property Act provides for transfer in
favour of the company which was unincorporated. The effect of the
Transfer of Property Act, therefore, postulates transfer in favour of
the unincorporated company. It does not create any bar.
30. Our attention was drawn to a statement made by Appellant 1
before the trial court in cross-examination. He stated that Sarafs had
informed him that the Company was the owner. He, however,
volunteered that he himself as also the Company became owners. He
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probably gave the said answer having regard to the fact that an
agreement for sale had been executed in his favour; and
furthermore Manoj Kumar Poddar had been granted a lease and
thus, he also became the owner thereof. His claim may not be correct
in law, but by reason thereof, it cannot be said that the
representation made by Sarafs that the Company was the owner of
the property had been whittled down or the appellants were all
along aware that Sarafs were the owners thereof.
31. The High Court, therefore, in our opinion committed a gross
error in opining that the object and purport of the proceedings in
OS No. 267 of 1980 was mainly for seeking foreclosure of the right of
reconveyance of vendor, S.N. Verma."
5.2 The EMD paid by the Promotor/Director, Sri Yousuf
Pangat, has to be treated as valid payment inasmuch as the bid
was subsequently made by the incorporated 3rd respondent
Company after the payment of EMD. It is also not in dispute that
the Promotor of the Company was authorized to enter into a
contract, including bidding, prior to its incorporation. Therefore,
I do not find much substance in the submission of the learned
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Senior Counsel. Hence, this issue is decided against the
petitioners.
6. So far as the question of appropriation of the amount of
Rs.7.90 crores deposited by the petitioners in pursuance of the
interim order passed by this Court is concerned, the said issue is
also covered against the petitioner in the case of Bank of Baroda
v. Karwa Trading Company2. Paragraphs 15 to 17 of the said
judgment are extracted hereunder:
"15. In view of the above and for the reasons stated above the
present appeal succeeds. The impugned judgment and order dated
20-9-2017¹ passed by the Division Bench of the High Court in DBSAW
No. 349 of 2017 is hereby quashed and set aside and the order2
passed by the learned Single Judge quashing and setting aside the
order passed by DRT dated 17-1-2014 confirmed by DRAT is hereby
restored.
16. It will be open for the appellant Bank to proceed further with the
auction proceedings of the mortgaged property in auction i.e.
residential house by inviting the bids afresh and whatever the
(2022) 5 SCC 168
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amount is already paid by the borrower, may be in pursuance to the
interim relief order passed by DRT and/or the impugned judgment
and order passed by the Division Bench of the High Court, the same
may be adjusted against the dues/total liability of the borrower. At
the same time, DRT to decide and dispose of SA No. 9 of 2014 filed by
the borrower under Section 17 of the SARFAESI Act in accordance
with law and on its own merits and on the whatever grounds which
may be available to the borrower.
17. It is also observed and directed that in case pursuant to the
orders passed by DRT and the Division Bench of the High Court, if
the borrower is put into possession, considering the fact that the
mortgaged property is a residential property, till the auction is
finalised and the mortgaged property is sold in a public auction, the
possession of the borrower may not be disturbed. However, it is
directed that on public auction being finalised and the mortgaged
property is sold by the Bank the borrower has to hand over the
peaceful and vacant possession of the property to the Bank and/or
the auction-purchaser. However, in the meantime the original title
deeds of the mortgaged property be retained by the Bank. In the
meantime, and till the borrower remains in possession of the
mortgaged property as per the present order and till the mortgaged
property is sold in a public auction, the borrower shall not transfer
and/or alienate the mortgaged property in any manner whatsoever
including the possession."
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7. When there is an outstanding of Rs.251 Crores, the Bank
cannot be directed to refund the amount received by them,
though in terms of the interim order passed by this Court
inasmuch as the writ petition was dismissed and against which the
Writ Appeal was allowed directing the petitioners herein to
approach the Debts Recovery Tribunal. However, the issue for a
refund of Rs.7.90 crores was left open, and the said issue has been
decided by the Debts Recovery Tribunal against them. This Court
does not find that the Debts Recovery Tribunal or the Debts
Recovery Appellate Tribunal has committed any error of law or
jurisdiction, which requires this Court to interfere with the
detailed findings recorded by the Debts Recovery Tribunal.
The writ petitions have no merit, which are hereby dismissed.
Sd/-
DINESH KUMAR SINGH
JUDGE
jjj
WP(C) Nos.28425/2024, 28988/2024
2024:KER:66461
APPENDIX OF WP(C) 28988/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 31.07.2024 OF DRAT IN R.A
NO.5 OF 2024
Exhibit P2 TRUE COPY OF THE ORDER DATED 9-6-2023 IN S.A NO. 76 OF
2023 PASSED BY THE DRT I ERNAKULAM
Exhibit P3 TRUE COPY OF R.A NO.5 OF 2024 FILED BEFORE THE DRAT
(WITHOUT ANNEXURES)
Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 4-1-2023 IN W.P (C)
NO. 24561 OF 2022
Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 25/1/2023 IN W. A
NO.26 OF 2023 AND W.A NO.128 OF 2023
Exhibit P6 TRUE COPY OF I.A NO.1073 OF 2024 FILED BY THE
PETITIONERS BEFORE THE DRAT
Exhibit P7 THE TRUE COPY OF THE ADDITIONAL TYPE SET OF
DOCUMENTS ALONG WITH THE DOCUMENTS
Exhibit P8 TRUE COPY OF I.A NO.1072 OF 2024 FILED BY THE
PETITIONERS AND RESPONDENTS 4 AND 5 BEFORE THE DRAT
WP(C) Nos.28425/2024, 28988/2024
2024:KER:66461
APPENDIX OF WP(C) 28425/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE JUDGMENT DATED 04-01-2023 IN
W.P.NO.24561 OF 2022
Exhibit P2 A TRUE COPY OF COMMON JUDGMENT DATED 25.01.2023 IN
WA NO.26 OF 2023 AND WA NO.128/2023
Exhibit P3 A TRUE COPY OF JUDGMENT DATED 30-03-2023 IN OP (DRT)
NO.123 OF 2023
Exhibit P4 A TRUE COPY OF JUDGMENT DATED 05-07-2023 IN
W.P.NO.20407 OF 2023
Exhibit P5 TRUE COPY OF R.A NO.5 OF 2024
Exhibit P6 TRUE COPY OF THE ORDER DATED 31.07.2024 OF DRAT IN R.A
NO.5 OF 2024
Exhibit P7 TRUE COPY OF I.A NO.1073 OF 2024 FILED BY THE
PETITIONERS BEFORE THE DRAT DATED 2/7/2024
