Kerala High Court
Canara Bank, Represented By Its Branch ... vs Anija Devi K on 11 September, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
OP (DRT) NO. 185 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024 / 20TH BHADRA,
1946
OP (DRT) NO. 185 OF 2024
AGAINST ORDER IN SA 147/2023 DATED 20.03.2024
PETITIONER/DEFENDANT:
1 CANARA BANK, REPRESENTED BY ITS BRANCH MANAGER,
AMARAVILA BRANCH,2ND FLOOR, CARMEL TOWERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695014
2 AUTHORISED OFFICER,
CANARA BANK, RECOVERY SECTION, REGIONAL OFFICE-
II, 2ND FLOOR, CARMEL TOWERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN - 695014
BY ADVS.
MOHAN JACOB GEORGE
P.V.PARVATHY (P-41)
REENA THOMAS
NIGI GEORGE
ANANTHU V.LAL
HARISHANKAR S.
RESPONDENTS/APPLICANTS:
1 ANIJA DEVI K,
W/O LATE SATHISH N,SREE PARVATHY,
THIRUMANGALAM,POOVAR ROAD, NEYYATINKARA P.O.
THIRUVANANTHAPURAM, PIN - 695121
2 PARVATHY A A,
D/O LATE SATHEESH N,SREE PARVATHY,
THIRUMANGALAM,POOVAR ROAD, NEYYATINKARA
P.O,THIRUVANANTHAPURAM, PIN - 695121
3 SHAMBHU A S,
S/O LATE SATHEESH N,SREE PARVATHY,
OP (DRT) NO. 185 OF 2024
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THIRUMANGALAM,POOVAR ROAD, NEYYATINKARA P.O, PIN
- 695121
4 DEBTS RECOVERY TRIBUNAL - II REPRESENTED BY ITS
REGISTRAR,
1ST FLOOR, KSHB BUILDING, PANAMPILLY NAGAR,
KOCHI, PIN - 682036
SRI.V.K. PEERMUHAMED KHAN
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 11.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
This Original Petition has been filed under Article 226 of
the Constitution of India impugning Ext.P6 order passed by the
Debt Recovery Tribunal - 2, Ernakulam in IA No.91/24 in SA
No.142/2023 filed by the respondents. The Tribunal has stayed
the possession notice under Section 14 of the SARFAESI Act as
well as sale notice on the ground that the notice was not served
to one of the minor child of the respondent mother.
2. The learned counsel for the petitioner Bank submits
that the respondents had approached this Court before filing SA
No.142/2023 before the Debt Recovery Tribunal in WPC
No.41065/2022. Only respondent, the mother came before this
Court in the said writ petition and two children were not even
the party before this Court. This Court considered the above
writ petition and disposed of the same with the following
directions:
"The outstanding amount of Rs.48,41,675/- shall be
repaid in '16' equated monthly installments.
(ii). The first instalment shall be paid on or before
17.02.2023 and the remaining instalments shall be paid
on or before the 17th day of every succeeding month.
OP (DRT) NO. 185 OF 2024
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(iii). In the event of default of any one instalment, the
respondent-Bank shall be entitled accordance with law. to
proceed in accordance with law.
(iv) In order to enable the petitioner to repay the entire
amounts, all coercive proceedings against the petitioner
shall be kept in abeyance."
3. The learned counsel for the petitioner Bank submits
that Section 14 notice has been under challenge before this
Court. The ground of non-service of notice to the minor child
was never taken in the said writ petition. After having obtained
the order from this Court in WPC No.41065/2022, instead of
comply with the said order, the respondents had filed the SA
taking the untenable ground in as much as the notice was
served on the respondent, who is the mother of the children
and therefore, no separate notice is required to be served on
the minor children in as much as the minor has appeared only
through the mother.
4. It is further submitted that the Tribunal has not
considered any of the plea raised by the petitioner Bank while
approaching the interim order and has passed the impugned
order, which is patently illegal and unsustainable.
5. The learned counsel for the respondents cannot deny
in fact that the respondent mother has come before this Court
OP (DRT) NO. 185 OF 2024
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in WPC 41605/2022, impugning the possession and sale notice,
in which the judgment was passed on 17.01.2023 and the
respondents did not comply with the said judgment and
approached the DRT.
6. Be that as it may, the Tribunal has required to
consider the legal submission and impact of the judgment dated
17.01.2023.
In view thereof, the present original petition is disposed of
with liberty to the petitioner to file an application for vacating
the impugned interim order dated 20.03.2023 by the Debt
Recovery Tribunal - 2, Ernakulam. If such an application is filed,
the same should be considered expeditiously, preferably within
a period of one month and final decision on the said application
should be rendered in accordance with law.
The interim order granted by this Court shall remain in
operation till the disposal of the stay vacation application newly
filed by the petitioner Bank. This should be filed within a period
of 15 days from today. In the meantime, the respondents 1 to 3
should not be dispossessed from the secured asset.
sd/-DINESH KUMAR SINGH
JUDGE
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OP (DRT) NO. 185 OF 2024
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APPENDIX OF OP (DRT) 185/2024
PETITIONER EXHIBITS
Exhibit P-1 COPY OF THE WRIT PETITION FILED AS W.P.
(C) NO.41605 OF 2022 (WITHOUT EXHIBITS)
DATED 17/12/2022
Exhibit P-1(a) COPY OF THE JUDGMENT DATED 17.01.2023
IN W.P.(C) NO.41605 OF 2022
Exhibit P-2 COPY OF THE S.A.NO.147/2023 FILED
BEFORE DRT-II, ERNAKULAM (WITHOUT
ANNEXURES) DATED 13/03/2023
Exhibit P-3 COPY OF THE WRITTEN STATEMENT FILED BY
THE BANK IN SA NO. 147 OF 2023 DATED
30.08.2023
Exhibit P-4 COPY OF IA NO.91 OF 2024 IN SA
NO.147/2023 SEEKING STAY OF FURTHER
PROCEEDINGS INITIATED BY THE BANK DATED
03.01.2024
Exhibit P-5 COPY OF THE COUNTER AFFIDAVIT IN IA
NO.91 OF 2024 DATED 09.01.2024
Exhibit P-6 CERTIFIED COPY OF THE ORDER DATED
20.3.2024 IN IA NO.91 OF 2024 PASSED BY
THE DRT-II
RESPONDENTS EXHIBITS: NIL
TRUE COPY
P.A TO JUDGE
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