Kerala High Court
Abraham Zacharia vs The Debts Recovery Tribunal on 18 June, 2025
OP (DRT) NOs. 233 OF 2023
& 249 of 2023 1
2025:KER:43522
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
OP (DRT) NO. 233 OF 2023
AGAINST THE ORDER DATED 02.06.2023 IN OA NO.155 OF 2011 OF
DEBT RECOVERY TRIBUNAL, ERNAKULAM
PETITIONER/APPLICANT/1ST DEFENDANT IN T.A.NO.273/2016:
ABRAHAM ZACHARIA,
RESIDING AT TC NO.11/991 (1), DLRAF 18, DEVASWOM
LANE, KESAVADASAPURAM, ULLOOR VILLAGE,
THIRUVANANTHAPURAM, PIN - 695004
BY ADVS.
SRI.VADAKARA V.V.N.MENON
SRI.S.MOHANA KUMARAN NAIR
RESPONDENTS/DRT ERNAKULAM BENCH-II AND THE RESPONDENT/2ND
RESPONDENT APPLICANT IN T.A.NO.273/2016:
1 THE DEBT RECOVERY TRIBUNAL II,
ERNAKULAM, REPRESENTED BY REGISTRAR, PIN - 682011
2 BANK OF BARODA,
VANCHIYOOR, TRIVANDRUM AND REGIONAL OFFICE KERALA
REGION, VASUDEVA BUILDING, T.D. ROAD, ERNAKULAM-
682011
REPRESENTED BY CHIEF MANGER, MR. K.P.
RADHAKRISHNAN
OTHER PRESENT:
SRI. NAGARAJ NARAYANAN.
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING BEEN FINALLY
HEARD ON 18.06.2025, ALONG WITH OP (DRT).249/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (DRT) NOs. 233 OF 2023
& 249 of 2023 2
2025:KER:43522
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 18TH DAY OF JUNE 2025 / 28TH JYAISHTA, 1947
OP (DRT) NO. 249 OF 2023
AGAINST THE ORDER DATED 26.08.2022 IN TA NO.273 OF 2016 OF
DEBT RECOVERY TRIBUNAL- 2, ERNAKULAM
PETITIONER/1ST DEFENDANT IN O.ANO.273/2016 AND APPLICANT IN
IA NOS.1847,1982/2022 AND PETITIONER IN I.A NO.2849/2022:
ABRAHAM ZACHARIA,
AGED 72 YEARS
RESIDING AT TC NO. 11/991 (1), DLRAF-18, DEVASWOM
LANE, KESAVADASAPURAM, ULLOOR VILLAGE,
THIRUVANANTHAPURAM, PIN - 695004
BY ADVS.
SRI.VADAKARA V.V.N.MENON
SRI.S.MOHANA KUMARAN NAIR
RESPONDENTS/THE TRIBUNAL AND THE APPLICANT INO.A
NO.273/2016 AND RESPONDENT IN I.A NOS.1847,1982 AND
2849/2022:
1 THE DEBTS RECOVERY TRIBUNAL,
ERNAKULAM BENCH II, 1ST FLOOR, K.S.H.B BUILDING,
PANAMPILLY NAGAR, KOCHI, REPRESENTED BY ITS
REGISTRAR, PIN - 682036
2 BANK OF BARODA,
VANCHIYOOR BRANCH, VANCHIYOOR, TRIVANDRUM AND
REGIONAL OFFICE KERALA REGION, VASUDEVA BUILDING,
T.D. ROAD, ERNAKULAM REPRESENTED BY CHIEF
MANGER,MR. K.P. RADHAKRISHNAN, PIN - 682011
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 18.06.2025, ALONG WITH OP (DRT).233/2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (DRT) NOs. 233 OF 2023
& 249 of 2023 3
2025:KER:43522
MOHAMMED NIAS C.P., J
............................................................
O.P (DRT) No.233 & 249 of 2023
.............................................................
Dated this the 18th day of June, 2025
JUDGMENT
This original petition is filed challenging Ext.P8 order
rejecting the request of the petitioner for examining the officers of
the bank as witnesses on his behalf. Through Ext.P8, the Tribunal
found that the issue of examination of the bank officials by the
defendant would be considered after hearing the parties on the
merits of the original application. It is further stated that after
hearing the parties, the Tribunal would pass necessary orders on
this point. Accordingly, the application preferred by the petitioner
was disposed of. The Tribunal itself had deferred the request made
by the petitioner to examine the officer.
2. I do not find any prejudice having been caused to the
petitioner due to the passing of Ext.P8 order. Needless to say that
the Tribunal will consider whether any ground is made out for
examining the officers of the bank as witnesses, and if the Tribunal
OP (DRT) NOs. 233 OF 2023
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is satisfied about the same, pass appropriate orders after hearing
both sides, in accordance with law. Needless to say that it will be
open to the parties to take up all contentions available to them
under law when the Tribunal is considering the request of the
petitioner seeking examination of the bank officials.
3. This original petition is filed by the same petitioner
challenging Ext.P7 order, which refused to accept the counterclaim
filed on 05.07.2022. The Tribunal relied on Section 19(8) of the
Recovery of Debts and Bankruptcy Act, 1993 (for short "the RDB
Act"), which stipulates that the defendant may set up a
counterclaim against the claim of the applicant, any right or claim
in respect of a cause of action accruing to the defendant against
the applicant either before or after the filing of the application but
before the defendant has delivered his defence or before the time
limited for delivering his defence has expired, whether such
counterclaim is in the nature of a claim for damages or not.
4. The Tribunal found that the counterclaim was filed
more than ten years after the filing of the written statement and
that there was no bonafides in filing the same, and the application
OP (DRT) NOs. 233 OF 2023
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preferred by the petitioner was dismissed. There was a further
request to exempt the payment of the court fee, which was also
rejected by the same order.
5. The petitioner had filed a review against the same, in
which the Tribunal passed Ext.P9 order dismissing the review
application. The learned counsel for the petitioner submits that he
relied on the judgments of the Hon'ble Supreme Court which
considered the impact of Order 8 Rule 6A of the Code of Civil
Procedure, and that the counterclaim has to be treated as a claim
and it is governed by the rule applicable to claim and the period of
limitation could be three years.
6. It is submitted by the learned counsel appearing for
the bank that the petitioner had filed three written statements,
despite which the counterclaim was not raised within the time
granted by law. Be that as it may, taking note of the fact that the
original application is of the year 2011, on account of the interim
order passed by this Court, the Tribunal could not proceed with the
case further.
7. Since the petitioner complains that the judgments
cited by him in the review petition were not considered and there
OP (DRT) NOs. 233 OF 2023
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is no reference to the same in the order impugned, I am inclined to
dispose of the Original petition directing the Tribunal to first hold
whether a valid counterclaim was made within time as per Section
19(8) of the RDB Act, and only on the Tribunal finding that in the
affirmative, the further issue of the petitioner being permitted to
adduce evidence would arise.
8. Under the above circumstances, there will be a
direction to the Tribunal to consider the legality of the
counterclaim first and thereafter, proceed to decide the original
application in accordance with law. Taking note of the fact that the
original application was filed in the year 2011, final orders shall be
passed by the Tribunal within five months from the date of receipt
of a copy of this judgment, The petitioner will cooperate with the
Tribunal in ensuring that the time limit fixed by this Court is
complied with. To enable the above exercise, the impugned orders
are set aside.
The original petitions are disposed of as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
Anu
OP (DRT) NOs. 233 OF 2023
2025:KER:43522
APPENDIX OF OP (DRT) 249/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOCOPY OF O.A.NO.155/2011 DATED
17.03.2011 (T.A.NO. 273/2016) FILED BY
THE 2ND RESPONDENT WITHOUT DOCUMENTS
THEREIN.
Exhibit P2 TRUE PHOTOCOPY OF WRITTEN STATEMENT
(PRELIMINARY) FILED BY THE 1ST
PETITIONER DATED 21-11- 2011 FILED ON
22-11-2011 IN T.A NO.273/2016
Exhibit P3 TRUE PHOTOCOPY OF WRITTEN STATEMENT
(FINAL) DATED 18. 11.2017 FILED BY THE
PETITIONER IN T.A NO.273/2016
Exhibit P4 TRUE PHOTOCOPY OF COUNTER CLAIM
PETITION WITH I.D.NO.9247/2022 DATED
5.7.2022_FILED BY THE PETITIONER WHICH
WAS PURPOSELY NOT NUMBERED
Exhibit P5 TRUE PHOTOCOPY OF I.A.NO.1847/2022 WITH
AFFIDAVIT DATED 5.07.2022 FILED BY THE
PETITIONER PRAYING LEAVE TO MAKE THE
COUNTER CLAIM
Exhibit P6 TRUE PHOTOCOPY OF I.A.NO.1982/2022 WITH
AFFIDAVIT DATED 29.07.2022 FOR
EXEMPTION FROM PAYING THE COURT FEE BY
THE PETITIONER.
Exhibit P7 TRUE PHOTOCOPY OF COMMON ORDER DATED
26.08.2022 PASSED BY THE 1ST `
RESPONDENT REJECTING EXHIBITS P5 & P6
APPLICATIONS FILED BY HIM
Exhibit P8 TRUE PHOTOCOPY OF REVIEW PETITION
I.A.NO.2849/2022 DATED 24.09.2022 FILED
BY THE PETITIONER
Exhibit P9 TRUE PHOTOCOPY OF ORDER/PROCEEDINGS
DATED 18.04,.2023 PASSED BY THE 1S T
RESPONDENT IN REVIEW PETITION
Exhibit P10 TINE PHOTOCOPY OF CPA DATED 09.01.2018
FILED BY THE PETITIONER ON 11.01.2018.
OP (DRT) NOs. 233 OF 2023
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APPENDIX OF OP (DRT) 233/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOCOPY OF O.A NO.155/2011 DATED
17-03-2011 (NO. 273/2016) WITHOUT
DOCUMENTS THEREIN
Exhibit P2 TRUE PHOTOCOPY OF WRITTEN STATEMENT
®(PRELIMINARY FILED ON 22/01/2011 BY
THE 1ST 041 PETITIONER
Exhibit P3 TRUE PHOTOCOPY OF WRITTEN STATEMENT
42,CT7 (FINAL) DATED 18/11/2017 FILED
BY THE PETITIONER
Exhibit P4 TRUE PHOTOCOPY OF IA NO. 3023/2022 ,
DATED 8-11-2022, WITH AFFIDAVIT FILED
BY THE PETITIONER IN - 6-.93 IA
Exhibit P5 TRUE PHOTOCOPY OF IA NO.3024/2022 DATED
8-11-2022 WITH AFFIDAVIT FILED BY THE
Exhibit P6 TRUE PHOTOCOPY OF IA NO.3025/2022 DATED
SI-S7 8-1 1 -2022 WITH AFFIDAVIT FILED
Exhibit P7 TRUE PHOTOCOPY OF COUNTER PROOF
AFFIDAVIT DATED 07/01/2018 FILED BY THE
PETITIONER
Exhibit P8 TRUE PHOTOCOPY OF COMMON ORDER
/PROCEEDINGS DATED 02/06/2023,PASSED BY
THE 1ST RESPONDENT
