Kerala High Court
Sachu Advaith Mohanachandran vs Priamal Capital And Housing Finance ... on 7 January, 2025
Author: N. Nagaresh
Bench: N.Nagaresh
2025:KER:845
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. 418 OF 2023
AGAINST THE ORDER IN SA NO.249 OF 2021 OF DEBT RECOVERY
TRIBUNAL, ERNAKULAM
PETITIONER:
SACHU ADVAITH MOHANACHANDRAN,
AGED 32 YEARS
MAKARI ARUKALICKAL, WEST ADOOR P.O,
PATHANAMTHITTA,
KERALA, PIN - 691523
BY ADVS.
ASWIN GOPAKUMAR
ADITYA VENUGOPALAN
MAHESH CHANDRAN
SARANYA BABU
NIKITHA SUSAN PAULSON
SHALLET K. SAM
TOMY THOMAS
RESPONDENT:
PRIAMAL CAPITAL AND HOUSING FINANCE LIMITED,
(FORMERLY KNOWN AS DEWAN HOUSING FINANCE CORPORATION
LIMITED) HAVING ITS REGISTERED OFFICE AT UNIT NO.601,
6TH FLOOR, PIRAMAL AMITI BUILDING,
PIRAMAL AGASTHYA CORPORATE PARK, KAMANI JUNCTION,
OPP. FIRE STATION, LBS MARG, KURLA,
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OP (DRT) NO.418 of 2023
: 2:
MUMBAI AND BRANCH OFFICE AT 1ST FLOOR,
K. M. M. BUILDING, PALARIVATTOM,
KOCHI, KERALA, PIN - 682025
REPRESENTED BY ITS AUTHORISED OFFICER
BY ADVS.
SRI. DENU JOSEPH
SMT. MUHISEENA.V.Z
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 24.09.2024 AND THE COURT ON 07.01.2025
DELIVERED THE FOLLOWING:
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OP (DRT) NO.418 of 2023
: 3:
N. NAGARESH, J.
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O.P.(DRT) No.418 of 2023
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Dated this the 7th day of January, 2025
JUDGMENT
~~~~~~~~~
Ext.P9 order dated 18.09.2023 in I.A.No.1456/2021
in S.A.No.249/2021 of the Debts Recovery Tribunal-I,
Ernakulam is under challenge, by the petitioner-applicant.
2. The petitioner's father owned "Green Valley
Multitheme Park and Convention Centre". The respondent-
Housing Finance Company advanced ₹ 2,51,27,039/- as SME
Property Loan to the petitioner on 31.07.2018. The petitioner
states that he duly repaid EMIs from August, 2018 to March,
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OP (DRT) NO.418 of 2023
2020 (20 months). Soon thereafter, Covid-19 pandemic broke
out and the petitioner's industry suffered substantial financial
loss.
3. The Convention Centre was taken over by the
District Disaster Management Authority in July, 2020 and
used it as Covid First Line Treatment Centre till April, 2021.
On 30.04.2021, the respondent issued notice under Section
13(2) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002. The
petitioner submitted a reply to Section 13(2) notice. The
application of the petitioner to restructure the loan was
rejected.
4. The petitioner filed Ext.P1 S.A.No.249/2021 before
the Debts Recovery Tribunal-I, Ernakulam challenging the
Demand Notice and subsequent Possession Notice, along
with Ext.P2 I.A.No.1456/2021 for stay. The petitioner would
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OP (DRT) NO.418 of 2023
submit that in 2021, the officers of the respondent approached
the petitioner and discussed about regularisation of the loan
account since the petitioner was making EMI remittances
regularly.
5. Contrary to discussion, the respondent filed
M.C.No.367/2022 in the Chief Judicial Magistrate's Court,
Pathanamthitta. The Chief Judicial Magistrate's Court passed
Ext.P3 order on 21.11.2022 appointing an Advocate
Commissioner to take over possession of the secured asset
mortgaged by the petitioner. The Advocate Commissioner
issued Ext.P4 notice to the petitioner. The petitioner
challenged Ext.P3 order in W.P.(C) No.3886 of 2023. The writ
petition was dismissed.
6. The petitioner filed W.A No.1295 of 2023. The said
Writ Appeal was disposed of as per Ext.P5 judgment dated
14.07.2023 directing the Debts Recovery Tribunal to pass
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orders on Ext.P2 stay petition. The Debts Recovery Tribunal,
however, dismissed the stay petition as per Ext.P9 order
dated 18.09.2023, without considering the arguments of the
petitioner.
7. The petitioner argues that the Debts Recovery
Tribunal dismissed the stay petition without considering his
arguments. Failure of the Tribunal to consider the arguments
amounts to negation of justice. In such circumstances, the
petitioner cannot be forced to file statutory Appeal before the
Appellate Tribunal making heavy statutory deposit. The
Tribunal's failure to consider and scrutinize the contentions of
the petitioner makes Ext.P9 order unfair and unreasonable,
urged the petitioner.
8. The respondent resisted the writ petition filing
counter affidavit. The respondent submitted that an amount of
₹3,66,92,203/- is outstanding and an amount of
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OP (DRT) NO.418 of 2023
₹1,67,79,085/- is lying as overdue as on 12.04.2024. When
substantial amount of public money is recoverable, the
petitioner, after suffering an order in the form of Ext.P9, had
approached this Court without service of notice of OP(DRT) to
the counsel appearing for the respondent before the Debts
Recovery Tribunal as well as before this Court and has
managed to obtain an interim order not to dispose of property,
on 11.10.2023. Based on the said order, no amounts have
been paid till date and outstanding as well as overdue is
mounting. Thereafter, in spite of specific direction on
30.10.2023 to serve copy, the copy of the original petition was
not served for a while and thereafter on 19.12.2023 the
matter was referred to mediation and interim order got
extended until 11th April. As a matter of fact, the petitioner
willfully dragged on the mediation proceedings and has failed
to fulfill his commitments to arrive at a settlement and
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OP (DRT) NO.418 of 2023
accordingly the mediation process failed.
9. Respondent has filed Ext.P7 counter affidavit and
Ext.P6 written statement explaining the stand, before the
Debts Recovery Tribunal. As a matter of fact all the factual
issues pleaded as part of this original petition are to be
considered and decided by the Tribunal. If the petitioner is
aggrieved by the decision of the Tribunal, the same is to be
taken up before the Appellate Tribunal and there is no
justification in approaching this Court invoking Article 227 of
the Constitution of India. As far as Ext.P9 order is concerned,
the same is passed on merits and it was proper for the
petitioner to have approached the Appellate Tribunal under
Section 18 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
2002 instead of approaching this Court. No case has been
put forth justifying interference under Article 227 of the
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Constitution of India and therefore the present original petition
is liable to be dismissed with cost, contends the respondent.
10. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the
respondent.
11. Though the petitioner has made many averments
and allegations regarding the conduct of the respondent
during the loan transactions, since what is challenged in the
O.P (DRT) is Ext.P9 order in the stay petition, I do not deem it
necessary to consider all those allegations to decide the
legality of Ext.P9, which is the issue involved in this
O.P.(DRT).
12. The contention of the petitioner is that the Debts
Recovery Tribunal has not considered all the legal issues
raised in Ext.P2 I.A. for stay and has passed Ext.P9 in a
peremptory manner. In Ext.P2 I.A., the petitioner has raised
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the following points.
1. Copies of loan documents were not provided to the
borrowers at the time of execution of loan agreement.
2. Internet facility was not given and monthly / periodic
statements were not provided.
3. The officers of the respondent intimidated the mother of
the petitioner violating Covid protocols.
4. Section 13(2) notice was issued to pressurise the
petitioner.
5. The respondent sold the petitioner's loan to HDFC Bank.
6. Application for restructuring of loan was rejected.
7. The petitioner's loan account was artificially
downgraded.
8. Closing loan balance is incorrectly shown and additional
amounts not sanctioned by loan agreement were levied.
9. Defendants forcibly affixed Section 13(4) notice.
13. A perusal of the afore allegations made by the
petitioner would show that these allegations are to be
established adducing evidence in the matter and has to be
decided finally.
14. While considering Ext.P2 I.A. for stay, the Tribunal
found that the availment of credit facilities and creation of
security interest are not denied by the petitioner. Default in
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repayment is also admitted. The Possession Notice dated
06.10.2021 is only a notice taking symbolic possession.
Allowing that prayer would amount to allowing the S.A. itself.
The Tribunal relied on the judgment of the Hon'ble High Court
of Madras in W.P.(C) Nos.37148 and 34534 of 2007, wherein
it was held that the Tribunal has no power to pass any interim
mandatory order relating to restoration of possession before
the finalisation of the proceedings under Section 17 of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002. I do not find any
illegality in Ext.P9 Order of the Tribunal.
The O.P (DRT) is hence dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/06.01.2025
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OP (DRT) NO.418 of 2023
APPENDIX OF OP (DRT) 418/2023
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE S.A 249 OF 2021
ALONG WITH DOCUMENTS PENDING BEFORE
THE HON'BLE DEBTS RECOVERY TRIBUNAL-1,
ERNAKULAM
Exhibit P2 TRUE COPY OF I.A. 1456 OF 2021 IN SA
NO.249/2021 FILED BEFORE DEBT RECOVERY
TRIBUNAL-1, ERNAKULAM
Exhibit P3 A TRUE COPY OF THE ORDER DATED
21.11.2022 PASSED BY THE CHIEF
JUDICIAL MAGISTRATE, PATHANAMTHITTA IN
Exhibit P4 TRUE COPY OF THE NOTICE OF THE
ADVOCATE COMMISSIONER TO THE
PETITIONER DATED 03.01.2023.
Exhibit P5 A TRUE COPY OF THE JUDGMENT IN W.A NO.
1295 OF 2023 DATED 14.07.2023
Exhibit P6 A TRUE COPY THE WRITTEN STATEMENT
FILED BY THE RESPONDENT IN S.A.249 OF
Exhibit P7 A TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE RESPONDENT IN I.A NO.
Exhibit P8 A TRUE COPY OF THE REJOINDER FILED BY
THE PETITIONER IN IA NO. 1456/2021 IN
SA NO.249 OF 2021
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OP (DRT) NO.418 of 2023
Exhibit P9 A TRUE COPY OF THE ORDER DATED
18.09.2023 IN I.A. NO. 1456 OF 2021 BY
THE DEBTS RECOVERY TRIBUNAL - 1
