Kerala High Court
Nimmi John Chackola vs Canara Bank (Erstwhile Syndicate Bank) on 7 January, 2025
Author: N. Nagaresh
Bench: N.Nagaresh
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 7TH DAY OF JANUARY 2025 / 17TH POUSHA, 1946
OP (DRT) NO. 20 OF 2024
AGAINST THE ORDER DATED 21.11.2023 IN OA NO.11 OF
2008 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM
PETITIONERS:
1 NIMMI JOHN CHACKOLA,
AGED 69 YEARS,
W/O. LATE. JOHN J CHCAKOLA,
CHACKOLA COLONY, PERUMANOOR,
ERNAKULAM KOCHI, PIN - 682015
2 ANNAH JOHN CHACKOLA,
AGED 45 YEARS
D/O. LATE. JOHN J CHCAKOLA,
CHACKOLA COLONY, PERUMANOOR,
ERNAKULAM KOCHI, PIN - 682015
3 JOSEPH JOHN CHACKOLA,
AGED 43 YEARS,
S/O. LATE. JOHN J CHCAKOLA,
CHACKOLA COLONY, PERUMANOOR,
ERNAKULAM KOCHI, PIN - 682015
BY ADV B.JAYASANKER
RESPONDENTS:
1 CANARA BANK (ERSTWHILE SYNDICATE BANK)
SHUNMUHAM ROAD BRANCH, PIONEER TOWERS,
SHUNMUHAM ROAD, ERNAKULAM, KOCHI,
REPRESENTED BY ITS CHIEF MANAGER,
PIN - 682031
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O.P.(DRT) No.20/2024
:2:
2 ANNAMMA CHACKOLA,
AGED 94 YEARS,
W/O. JOSEPH J CHACKOLA,
CHACKOLA COLONY, PERUMANOOR,
ERNAKULAM KOCHI,
PIN - 682015
3 JOSEPH J CHACKOLA,
AGED 60 YEARS,
S/O. LATE. JOSEPH J CHACKOLA,
CHACKOLA COLONY, PERUMANOOR,
ERNAKULAM KOCHI, PIN - 682015
BY ADVS.
SHYAM KUMAR K.T.
PREMJIT NAGENDRAN
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 30.10.2024, THE COURT ON 07.01.2025
DELIVERED THE FOLLOWING:
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O.P.(DRT) No.20/2024
:3:
N. NAGARESH, J.
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O.P.(DRT) No.20 of 2024
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Dated this the 7th day of January, 2025
JUDGMENT
~~~~~~~~~
The petitioners, who are the wife and
children of John J. Chackola, have filed this Original
Petition seeking to set aside Ext.P9 order of the Debts
Recovery Tribunal-1, Ernakulam and consequently dismiss
O.A. No.11 of 2008 as against the petitioners.
2. The petitioners state that father of the said
John J. Chackola, late Joseph J. Chackola, was a guarantor
to the credit facility availed by M/s. United Cochin Steel Re-
Rollers Private Ltd. from the Syndicate Bank, which is now
merged with the Canara Bank. After the demise of Joseph J.
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Chackola, the Syndicate Bank filed O.S. No.168 of 1979 in
the 3rd Additional Sub Court, Ernakulam. The suit was filed to
recover ₹27,64,250.81. The suit was decreed on 30.03.1985,
allowing the Bank to recover ₹27,64,250.81 with future
interest at the rate of 6% per annum, personally from the 2 nd
defendant (Samuel John) and from defendants 3 to 5 to the
extent of the properties inherited by them from Joseph J.
Chackola, and also by way of sale of plaint A and B
scheduled property.
3. M/s. United Cochin Steel Re-rollers Private
Limited filed A.S. No.201 of 1988 before the High Court. No
order was given by the Court staying execution of the
Decree. Therefore, the time for execution of the Decree
started running from 30.03.1985, contend the petitioners.
Pending the appeal, the 2nd defendant Samuel John passed
away. The petitioners state that as per order dated
05.06.1995, the Court recorded that the 2 nd defendant in the
suit died and that no legal representatives are to be
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impleaded. Thereafter, the 6th respondent (who was the 5th
defendant in the Suit) was also removed from the party array
in the appeal as per order dated 25.03.1988. Since the legal
representatives of the 3rd respondent were not impleaded in
the appeal and since the 6th respondent was removed from
the party array, what was pending before the Court was only
an incompetent appeal abated by operation of law, contend
the petitioners.
4. The petitioners state that none of the parties
to the appeal did point out the abatement of the appeal, to
this Hon'ble Court. While so, Sri.John J. Chackola, the
predecessor in interest of the petitioner and who was the 3 rd
defendant in the Suit and 4th respondent in the appeal, also
died on 08.03.1994. By the time, the appeal had abated and
no steps were taken to set aside the abatement and to
implead the petitioners. Ultimately, without noticing that the
appeal had already been abated, this Court heard the appeal
and the appeal was dismissed on 15.10.1998. Ext.P3 Decree
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passed in an appeal which had already abated, is non-est.
The petitioners herein are not parties to the Decree.
5. The Bank on 30.11.2007 filed Ext.P4 O.A.
under Section 19(1) of the Recovery of Debts due to Banks
and Financial Institutions Act, 1993, before the Debts
Recovery Tribunal-1, Ernakulam. The O.A. was filed arraying
Annamma Chackola, the 5th respondent in the appeal as 1 st
defendant, Joseph Chackola who was removed from the
party array in the appeal as 2nd defendant and the petitioners
herein who were not parties either in the Original Suit or in
the appeal as legal representatives of John J. Chackola.
None of the legal representatives of late Samuel John, were
arrayed in the O.A.
6. The petitioners state that an application filed
under Section 19(1) read with Section 31A for recovery of an
amount under a Decree or Order passed by any Court before
the commencement of the Recovery of Debts due to Bank
and other Financial Institutions (Amendment) Act, 2020 and
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that has yet not been executed, is an original proceedings
and the jurisdiction of the Tribunal is only to issue a
Certificate of Recovery to a Recovery Officer in terms of the
Decree and on receipt of a Certificate, the Recovery Officer
shall proceed to recover the amounts as if it was a Certificate
in respect of a debt recoverable under the Act.
7. The petitioners would further submit that in
calculating the limitation for filing Ext.P4 O.A., the Bank has
taken the starting point of limitation on 15.10.1998, the date
on which this Court has dismissed the appeal filed by the 1 st
defendant under the misconception that Ext.P1 Decree
passed by the 3rd Additional Sub Court, Ernakulam has
merged in Ext.P3 Decree passed by this Court.
8. Pending the O.A., the Syndicate Bank has
merged with the Canara Bank and appropriate changes were
made in the O.A. The petitioners had filed their Written
Statement and Additional Written Statement in the O.A. The
petitioners had also filed Ext.P8 counter proof affidavit. In
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their objections as well as in the counter proof affidavit, the
petitioners had submitted that they were not parties to
Exts.P1 and P3 Decrees and their predecessor John J.
Chackola was arrayed in the Trial Court as legal
representative of the original guarantor late Joseph J.
Chackola. Joseph J. Chackola died during appeal
proceedings and this Court disposed of the appeal without
noticing the death and after the abatement of the Appeal.
9. The Debts Recovery Tribunal, without
adverting to the objections of the petitioners, allowed the O.A.
as prayed for, as per Ext.P9 order. Ext P9 is legally
unsustainable, contend the petitioners.
10. The 1st respondent-Canara Bank filed
counter affidavit and resisted the writ petition. The 1st
respondent stated that the O.P.(DRT) is not maintainable as
the petitioners have efficacious alternative remedy. A final
order passed by the Debts Recovery Tribunal under Section
31A read with Section 19 of the Recovery of Debts and
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Bankruptcy Act, 1993 is appealable before the Tribunal under
Section 20 of the Recovery of Debts due to Banks and
Financial Institutions Act, 1993. The 1st respondent submitted
that the Syndicate Bank had filed E.P. No.598 of 1985 for
sale of the mortgaged property. The property was sold in
Court auction on 09.10.1991. After paying ₹1,13,713.40 to
the Provident Fund Commissioner as ordered by the
executing Court, the Bank received only ₹12,37,386/-.
11. The 1st respondent submitted that legal heirs
of the deceased guarantor Joseph Chackola, were impleaded
as respondents 3 to 6 in A.S. No.201 of 1988 before this
Court. The 3rd respondent in the appeal died during the
pendency of A.S. No.201 of 1988. The legal heirs of the
deceased respondent were not included in the appeal by the
appellant who was the 1st defendant in the suit. The name of
the 6th respondent in the appeal was deleted from the party
array by the appellant. This Court dismissed A.S. No.201 of
1988 as per judgment dated 15.10.1998.
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12. When the Decree of a Trial Court merges
with the Decree of Appellate Court, the starting point of
limitation for application for execution of the Decree is that of
the Appellate Court decree, contended the 1 st respondent.
The argument of the petitioners regarding limitation is
therefore unsustainable. The 1st respondent submitted that in
an application filed under Section 31 of the Act, the Tribunal
is required to consider only the limited question of issuance
of Recovery Certificate in terms of the Decree. Ext.P9 order
has been passed by the Debts Recovery Tribunal after
considering the contentions raised by either side. The
supervisory jurisdiction of the Court under Article 227 of the
Constitution of India cannot be extended to adjudicate the
correctness of the order passed by the Debts Recovery
Tribunal. The Original Petition is therefore liable to be
dismissed.
13. Respondents 2 and 3 also filed counter
affidavit. Respondents 2 and 3 submitted that Ext.P3 is non-
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est in law. The 3rd respondent died during the pendency of
the appeal. It was recorded by this Court that there are no
legal representatives of the deceased respondent, which is
factually incorrect and as such the appeal is abated on the
death of the 3rd respondent. Similarly, the 3rd respondent in
the O.P., who was the 6th respondent in the appeal, was
removed from the party array on 24.03.1988. The 4 th
respondent in the appeal, the brother of the 3 rd respondent,
died on 08.03.1994. His legal representatives are not
impleaded in the appeal. The Decree in the appeal is
therefore non-est in the eye of law.
14. I have heard the learned counsel for the
petitioner, the learned Standing Counsel appearing for the 1 st
respondent and the learned counsel representing
respondents 2 and 3.
15. Late Joseph J. Chackola (Sr) was guarantor
to the credit facility availed by M/s.United Cochin Steel Re-
Rollers Private Ltd. The Syndicate Bank filed O.S. No.168 of
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1979 in the 3rd Additional Sub Court, Ernakulam to recover
₹27,64,250.81 from M/s. United Cochin Steel Re-Rollers
Private Limited.
16. The suit was decreed on 30.03.1985, as per
Ext.P1. The following persons were the defendants in the
suit:
1. M/s. United Cochin steel Re-rollers Private Limited
2. Samuel John, Director
3. John J. Chackola
4. Mrs. Annamma Chackola
5. Joseph J. Chackola (Jr)
17. As the original guarantor, Joseph J.
Chackola (Sr) passed away by that time, his legal heirs
defendants 3 to 5 were made parties to the Suit. The Suit
was decreed on 30.03.1985. M/s. United Cochin Steel Re-
rollers Private Ltd. filed A.S. No.201 of 1988 before this
Court. Pending the Appeal, the 2nd defendant-Samuel John,
Director passed away. The death was recorded in the Suit on
05.06.1995, stating that deceased Samuel John had no legal
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heirs to be impleaded in the Suit. The 5 th defendant in the
Suit was also removed from the party array in the appeal, on
24.03.1988. On 08.03.1994, the predecessor of the writ
petitioners, the 3rd defendant, passed away. No steps were
taken to implead the petitioners, who are the legal
representatives of the 3rd defendant, in the appeal. Thus, the
appeal abated. This Court, without noticing the abatement of
the appeal, dismissed the appeal on 15.10.1998, confirming
the Trial Court judgment.
18. The Bank filed O.A. invoking Section 19(1)
read with Section 31A of the Recovery of Debts due to Banks
and Financial Institutions Act, 1993 arraying the 4th defendant
in the Suit as 1st defendant in the O.A., the 5 th defendant in
the Suit, who was removed from the party array as 2 nd
defendant in the O.A. and the petitioners herein who were not
parties to the Suit or Appeal, as defendants 3 to 5 in the OA.
19. In the OA, the petitioners had filed their
written statement and additional written statement. The
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petitioners had also filed Ext.P8 counter proof affidavit. In
their objections and in the counter proof affidavit, the
petitioners submitted that they were not parties to Exts.P1
and P3 Decrees and their predecessor John J. Chackola was
arrayed in the Trial Court as legal representative of the
original guarantor late Joseph J. Chackola. Joseph J.
Chackola died during appeal proceedings and this Court
disposed of the appeal without noticing the death and after
the abatement of the Appeal.
20. However, the Tribunal allowed the O.A., as
per Ext.P9 order. In Ext.P9 order, the Tribunal considered the
issue, but held that the Tribunal as an execution Court,
cannot go beyond the terms of the Decree dated 30.03.1985
of the Additional Sub Court-3, Ernakulam in O.S. No.168 of
1979. The Decree has not been set aside by any superior
Court. An execution Court should take a Decree as it stands.
Accordingly, the Tribunal directed all the defendants in O.A.
to pay to the Bank ₹40,09,886.07 with further interest at the
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rate of 6%, jointly and severally.
21. It is true that under Section 31A of the Act,
where a Decree or Order was passed by any Court before
the Amendment Act, 2000 but yet not executed, and an
application has been made by the Decree holder to the
Tribunal to pass an order for the recovery of the amount, then
the Tribunal may issue a Certificate for Recovery to a
Recovery Officer.
22. But, while issuing a Certificate for Recovery,
the Tribunal has a duty to apply its mind and come to a
conclusion that the amount is legally recoverable from the
parties who are arrayed as respondents in the O.A. In the
case of Ext.P9, the petitioners were not parties to the Decree
in O.S. The petitioners were not parties to the appeal. The
liability of Joseph J. Chackola (Sr), grandfather of the
petitioners, was as a guarantor to the loan transaction.
Whether the petitioners have inherited any assets from the
said Joseph J. Chackola (Sr) and whether the petitioners
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have any obligation to discharge his liability etc., are matters
to be considered, because the petitioners were not parties to
the civil proceedings at any point of time and there is no
Decree passed by any Civil Court against the petitioners.
Ext.P9 order does not disclose the findings or conclusions of
the Tribunal on these aspects.
23. In the facts of the case, I am of the firm
opinion that the Debts Recovery Tribunal shall reconsider the
entire issues afresh.
24. Ext.P9 Order dated 21.11.2023 in O.A.
No.11 of 2008 of the Debts Recovery Tribunal-1 at
Ernakulam is hence set aside. The Debts Recovery Tribunal
is directed to reconsider the matter and pass orders afresh
after hearing the parties again.
OP(DRT) is disposed of as above.
Sd/-
N. NAGARESH, JUDGE
aks/06.01.2025
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APPENDIX OF OP (DRT) 20/2024
PETITIONER'S EXHIBITS:
Exhibit P1 A TRUE TYPEWRITTEN COPY OF THE DECREE
PASSED BY THE 3RD ADDITIONAL SUB
COURT; ERNAKULAM
Exhibit P2 THE TRUE COPY OF THE DEATH CERTIFICATE
OF THE PREDECESSOR IN THE INTEREST OF
THE PETITIONERS TENDERED IN EVIDENCE
BEFORE THE DEBT RECOVERY TRIBUNAL BY
THE PETITIONERS
Exhibit P3 THE TRUE COPY OF THE APPELLATE COURT
DECREE DATED 15-10-1998 PASSED BY THIS
HON'BLE COURT IN A.S. NO. 201/1988
Exhibit P4 THE TRUE COPY OF THE ORIGINAL
APPLICATION NO.11/2008 FILED BY THE
ERSTWHILE SYNDICATE BANK ON THE FILES
OF THE DEBT RECOVERY TRIBUNAL-1,
ERNAKULAM
Exhibit P5 THE TRUE COPY OF THE WRITTEN
STATEMENT/ OBJECTION DATED 25-03-2008
TO THE ORIGINAL APPLICATION FILED BY
THE PETITIONERS
Exhibit P6 THE TRUE COPY OF THE ADDITIONAL
WRITTEN STATEMENT/ OBJECTION DATED 03-
04-2008 TO THE ORIGINAL APPLICATION
FILED BY THE PETITIONERS
Exhibit P7 THE TRUE COPY OF THE DETAILED WRITTEN
STATEMENT DATED 09-04-2008 FILED BY
THE 1ST DEFENDANT
Exhibit P8 THE TRUE COPY OF THE COUNTER-PROOF
AFFIDAVIT DATED 09-09-2016 IN O.A.11
OF 2008 ON THE FILES OF THE DEBT
RECOVERY TRIBUNAL FILED BY THE
PETITIONERS
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Exhibit P9 THE TRUE COPY OF THE ORDER DATED 21-
11- 2023 PASSED BY THE DEBT RECOVERY
TRIBUNAL IN O.A.NO.11 OF 2008.
