Kerala High Court
The Kunnamkulam Mill Boards vs The South Indian Bank on 10 February, 2025
2025:KER:22271
O.P.(DRT)NO.149/2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
OP (DRT) NO. 149 OF 2017
AGAINST THE ORDER DATED in I.A.NO.1941/2017 IN
T.A.NO.159/2016 ( OA NO.174 OF 2012) DATED 18.11.2017 OF
DEBTS RECOVERY TRIBUNAL, ERNAKULAM
PETITIONERS:
1 THE KUNNAMKULAM MILL BOARDS
KIZHOOR, KUNNAMKULAM,THRISSUR DISTRICT,PIN-680523
REPRESENTED BY ITS MANAGING PARTNER,C.L.VARGHESE
2 C.L.VARGHESE
S/O. C.V.LOANAPPAN, CHEERAN HOUSE, 23 " ROHINI:
HARI SREE NAGAR,PONKUNNAM PO., THRISSUR PIN-
680002
3 MAYA VARGHESE
W/O. C.L.VARGHESE, CHEERAN HOUSE, 23, " ROHINI:
HARI SREE NAGAR,PONKUNNAM PO., THRISSUR PIN-
680002
BY ADV SRI.DINESH MATHEW J.MURICKEN
RESPONDENT:
THE SOUTH INDIAN BANK LTD.,
KUNNAMKULAM MAIN BRANCH,
1ST FLOOR, HALL NO.3 & 4,
MUNICIPAL C. SHAPE BUILDING,
KUNNAMKULAM P.O., THRISSUR DISTRICT,
PIN - 680 503 REPRESENTED BY ITS
SENIOR MANAGER.
BY ADV SRI.K.K.JOHN
OTHER PRESENT:
SRI. SUNIL SHANKER, SC
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O.P.(DRT)NO.149/2017 2
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 20.012.2017, THE COURT ON 10.2.2025 DELIVERED
THE FOLLOWING:
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O.P.(DRT)NO.149/2017 3
JUDGMENT
This Original Petition (DRT) has been filed challenging
Ext.P7 order in I.A.No.1941/2017 in T.A.No.159/2016. The
petitioners are the defendants in T.A.No.159/2016 on the file of the
Debts Recovery Tribunal-II, Ernakulam arising out of
O.A.No.174/2012.
2. According to the petitioners, in O.A.No.174/2012,
they were not served with any notice and they were set ex parte and a
final order was issued on 4.10.2012. According to the petitioners,
they came to know of the ex parte order in O.A.No.174/2012 only
when a copy of the order was received by them. They filed
I.A.No.3410/2012 seeking to set aside the ex parte order. A reading
of the averments in the affidavit in support of I.A.No.3410/2012
would indicate that summons in O.A.No.174/2012 was issued at the
residential address of the Managing Partner and the summons was
returned 'unclaimed'. It is stated in the affidavit that, though
intimation was given, the Managing Partner of the petitioners was
'absent' and hence the summons was not served and it was returned
'unserved'. According to the affidavit, if the summons to the firm had
been issued in the address of the firm, the same would have been
received.
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3. The Bank filed objections to the applications for
setting aside the ex parte order as also to the application for
condoning the delay of 71 days in filing an application to set aside the
ex parte order. Going by Ext.P3 counter affidavit filed by the
respondent Bank, the notice was deemed duly served by virtue of
Regulation 17(2) of the Debts Recovery Tribunal, Ernakulam (Kerala
and Lakshadweep) Regulations of Practice, 2005. It is stated that
the interlocutory applications filed for setting aside the ex parte
order and the application for condonation of delay were posted on
13.6.2016 on which date the respondent Bank was heard and the
petitioners were granted time till 31.7.2017 to file argument notes.
The argument notes were duly filed on 28.7.2017. It is stated that, on
31.7.2017, I.A.Nos.3410/2012 and 3486/2012 were posted for
hearing to 26.10.2017. On 26.10.2017, it is stated that the counsel for
the petitioners could not appear and the Tribunal took the
interlocutory applications for orders after recording that the
petitioners had not addressed any oral arguments.
4. The petitioners filed Ext.P6 application seeking
review of the proceedings dated 26.10.2017 and the same was
dismissed by Ext.P7 order which is under challenge in this Original
Petition (DRT).
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4. Having considered the contentions raised and
having perused Ext.P7 order, I find no reason to interfere with Ext.P7
order in exercise of the jurisdiction vested in this Court under
Art.226 of the Constitution of India. A perusal of Ext.P7 will show
that sufficient opportunity had been given to the petitioners to
address arguments. Even going by the pleading in the Original
Petition (DRT), it is clear that the petitioners have been given
sufficient opportunity to address arguments. Moreover, they were
also permitted to file argument notes. Therefore, it cannot be held
that any prejudice has been caused to the petitioners by not affording
to them an opportunity of oral hearing. It is not the law that every
order containing some defect or the other issued by a Court or
Tribunal subordinate to the High Court must be interfered with in
exercise of jurisdiction under Art.226 of the Constitution of India. In
the facts of the present case, there is no substantial prejudice caused
to the petitioners. The Tribunal has not committed any error in
dismissing the review petition by Ext.P7 order. Therefore, I find no
reason to interfere with Ext.P7 order. The Original Petition (DRT)
will accordingly stand dismissed.
GOPINATH P.
JUDGE
acd
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APPENDIX OF OP (DRT) 149/2017
PETITIONER EXHIBITS
EXHIBIT P1: TRUE COPY OF I.A.NO.3410/2012 IN
O.A.NO.174/2012 FILED BY THE PETITIONERS
EXHIBIT P2: TRUE COPY OF THE I.A.NO. 3410/2012 IN
OA.NO.174/2012 FILED BY THE PETITIONERS
BEFORE THE DEBT RECOVERY TRIBUNAL,
ERNAKULAM DATED 13.12.2012
EXHIBIT P3: TRUE COPY OF THE COUNTER AFFIDAVIT IN
I.A.NO.3410/2012 IN O.A.NO.174/2012
FILED BY THE RESPONDENT BANK BEFORE THE
DEBT RECOVERY TRIBUNAL, ERNAKULAM DATED
31.01.2015
EXHIBIT P4: TRUE COPY OF THE COUNTER AFFIDAVIT IN
I.A.NO.3486/2012 IN OA.NO.174/2012 FILED
BY THE RESPONDENT BANK BEFORE THE DEBT
RECOVERY TRIBUNAL ERNAKULAM DATED
31.01.2015
EXHIBIT P5: TRUE COPY OF THE ARGUMENT NOTES IN
OA.NO.174/202 FILED BY THE PETITIONERS
BEFORE THE DEBT RECOVERY TRIBUNAL,
ERNAKULAM DATED 28.07.2017
EXHIBIT P6: TRUE COPY OF I.A.NO.1941.2017 IN
OA.NO.174/2012 FILED BY THE PETITIOENRS
BEFORE THE DEBT RECOVERY TRIBUNAL,
ERNAKULAM DATED 01.1.2017
EXHIBIT P7: TRUE COPY OF THE ORDER IN
I.A.NO.1941/2017 IN T.A.NO.159/2016
(OA.NO.174/2012) PASSED BY THE DEBT
RECOVERY TRIBUNAL-2, KERALA AT ERNAKULAM
DATED 18.11.2017
