Kerala High Court
Abraham Zacharia vs The Debts Recovery Tribunal on 26 February, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY ,THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940
OP (DRT).No. 34 of 2019
PETITIONER:
ABRAHAM ZACHARIA,
AGED 67 YEARS
RESIDING AT TC NO.11/1991 (1). DLRA 18, DEVASWOM LANE,
KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM, KERALA, PIN -
695 004.
BY ADVS.
SRI.N.S.GOPAKUMAR
SRI.S.MOHANA KUMARAN NAIR
RESPONDENTS:
1 THE DEBTS RECOVERY TRIBUNAL
ERNAKULAM, BENCH II, REPRESENTED BY ITS REGISTRAR, 1ST FLOOR,
K.S.H.B.BUILDING, PANAMPILLY NAGAR, KOCHI, PIN - 682 036.
2 BANK OF BARODA
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, BARODA
CORPORATE CENTRE, PLOT NO.26, G-BLOCK, BANDRA, KURULA COMPLEX
BANDRA (EAST), MUMBAI, PIN - 400 051.
3 AUTHORISED OFFICER (K.P.RADHAKRISHNAN)
BANK OF BARODA, PALAYAM BRANCH, THIRUVANANTHAPURAM, KERALA, PIN
- 695 033.
4 BANK OF BARODA
VANCHIYOOR BRANCH, VANCHIYOOR, VANCHIYOOR P.O.,
THIRUVANANTHAPURAM, PIN- 695 015, REPRESENTED BY ITS MANAGER.
5 DAMODAR
ASST. REGIONAL MANAGER, REGIONAL OFFICE, BANK OF BARODA,
VASUDEVA BUILDING, T.D.ROAD, ERNAKULAM, KOCHI, PIN- 682 011.
6 KAMATH
DEPUTY REGIONAL MANAGER, REGIONAL OFFICE, BANK OF BARODA,
VASUDEVA BUILDING, T.D.ROAD, ERNAKULAM, KOCHI - 682 011.
OTHER PRESENT:
SMT.R.REMA-SC
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 26.02.2019, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP (DRT).No. 34 of 2019
2
JUDGMENT
The petitioner is stated to be the applicant in a Securitisation Application, numbered as S.A.No.197 of 2016, before the Debts Recovery Tribunal - 2, Kerala ('DRT' for short) and he impugns Ext.P4 order of the said Tribunal, closing the afore mentioned Securitisation Application as having become infructuous. The petitioner says that the DRT was in error in so closing the Securitisation Application, since the matter had not become infrutuous, contrary to what is recorded in Ext.P4.
2. The learned counsel for the petitioner explains that the aforementioned Securitisation Application was filed by his client impugning a possession notice, dated 01.02.2011, issued by the respondent Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity), and that pending this Application, the Bank filed Ext.P2 memo before the DRT withdrawing the said notice and seeking permission to initiate fresh action under Section OP (DRT).No. 34 of 2019 3 13(4) of the SARFAESI Act. The learned counsel says that the DRT, solely based on this memo, dismissed the Securitisation Application under the misconception that nothing survives therein. According to the learned counsel, several reliefs had been sought for in the Securitisation Application and therefore, that merely because the Bank had withdrawn the impugned possession notice, the said Application could not have been disposed of in the manner, as has been done in Ext.P4. He therefore, prays that Ext.P4 be set aside and that the DRT be directed to take up the Securitisation Application and dispose it of in terms of law.
3. Sri.R.Rema, the learned standing counsel appearing for the respondent - Bank, submits that, as is clear from Ext.P2, her client had withdrawn the possession notice dated 01.02.2011, produced as Annexure - F in the Securitisation Application, since they were unable to produce proof of service of the said notice on the borrower; and therefore, they had sought permission to withdraw their contentions with liberty to initiate fresh proceedings. She OP (DRT).No. 34 of 2019 4 says that Ext.P4 order was thereupon issued by the DRT correctly, imposing a cost of Rs.20,000/- against the Bank, which costs were accepted by the petitioner, endorsing its receipt in the proceeding sheet of the Tribunal. She therefore, says that the petitioner cannot be now allowed to challenge Ext.P4, particularly when he had indubitably accepted the same, evidenced by him receiving the costs ordered in it.
4. The learned counsel for the petitioner, in response to the submissions of Smt.Rema, says that his client had accepted the costs being under a wrong impression and that he was forced to do so under coercion and duress by the Tribunal. He says that merely because his client had accepted the costs, it would be no reason for this Court to deny jurisdiction.
5. Even when I hear the learned counsel for the parties as afore, I have serious doubts as to whether this Court can exercise any jurisdiction in this matter on account of the fact that the petitioner has an alternative efficacious OP (DRT).No. 34 of 2019 5 statutory remedy by filing an appeal against Ext.P4 order before the Debts Recovery Appellate Tribunal, Chennai. Further, going by the binding precedent of the Hon'ble Supreme Court in Union Bank of India v. Satyawati Tondon ((2010) 8 SCC 110) and followed recently in Authorised Officer, SBT v. Mathew (ILR 2018 (1) Ker.
479), I will not be justified in exercising jurisdiction in this writ petition, when the petitioner concededly has alternative statutory remedies.
6. Apart from this, the question as to whether the petitioner had accepted the costs, awarded in Ext.P4, under duress or under a misdirection are not matters that can engage the attention of this Court affirmatively and therefore, if the petitioner so desires, his remedy will be file to an appropriate application for review before the DRT and seek orders therefrom; or, in the alternative, challenge the impugned order before the Debts Recovery Appellate Tribunal, Chennai, in terms of the provisions of the SARFAESI Act.
OP (DRT).No. 34 of 20196
7. In the afore circumstances, I see no reason to exercise my discretionary jurisdiction in this matter and I therefore, dismiss this writ petition; however, leaving liberty to the petitioner, either to approach the DRT or the DRAT appropriately in terms of law.
Sd/-
DEVAN RAMACHANDRAN
rp JUDGE
OP (DRT).No. 34 of 2019
7
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF POSSESSION NOTICE DATED 01/02/2011
ALLEGED TO BE ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2 TRUE PHOTOCOPY OF MEMO DATED 11/01/2018 SIGNED BY THE 3RD RESPONDENT AUTHORIZED OFFICER FILED IN T.S.A.NO.197/2016. EXHIBIT P3 TRUE PHOTOCOPY OF I.A.NO.392/2018 WITH AFFIDAVIT DATED 16/02/2018, FILED BY THE PETITIONER IN T.S.A.NO.197/2016 FOR HEARING AND CONSIDERING THE SAME ON MERIT. EXHIBIT P4 TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 07/05/2018 IN T.S.A.NO.197/2016.
EXHIBIT P5 TRUE PHOTOCOPY OF ACKNOWLEDGMENT WITH ENTREPRENEURS MEMORANDUM NO.320141101261 DATED 18/10/2007 ISSUED FROM DISTRICT INDUSTRIES CENTRE, THIRUVANANTHAPURAM. EXHIBIT P6 TRUE PHOTOCOPY OF CERTIFICATE DATED 29/08/2007 ISSUED BY DEPT OF TOURISM, GOVT. OF KERALA IN FAVOR OF THE FIRM M/S.ADORN FOR PARTICIPATION IN ONAM CELEBRATION HELD FROM 19TH TO 29TH AUGUST 2007 AT THIRUVANANTHAPURAM EXHIBIT P7 TRUE PHOTOCOPY OF STALL ALLOTMENT LETTER NO.12932/1/07/I&PR DATED 02/11/2007 FOR ALLOTMENT OF STALL FOR THE FIRM M/S.ADORN IN INDIA INTERNATIONAL TRADE FAIR (I.I.T.F) 2006 HELD AT NEW DELHI WITH LAYOUT PLAN. EXHIBIT P8 TRUE PHOTOCOPY OF RENTAL AGREEMENT DATED 14/01/2008 EXECUTED IN FAVOUR OF THE FIRM M/S.ADORN FOR RUNNING OFFICE CUM FACTORY AT NEW DELHI.
EXHIBIT P9 TRUE PHOTOCOPY OF CERTIFICATE OF PARTICIPATION ISSUED BY KERALA BUREAU OF INDUSTRIAL PROMOTION, TO THE FIRM M/S.ADORN FOR PARTICIPATION IN INTERNATIONAL FAIR ON FOOD HELD AT NEW DELHI FROM MARY 10TH TO 14TH 2008. EXHIBIT P10 TRUE PHOTOCOPY OF CATALOGUE OF THE PRODUCT-ENERGY SAVING STOVE, DISTRIBUTED BY THE FIRM M/S.ADORN IN IITF, NEW DELHI AND OTHER EXHIBITIONS & TRADE FAIRS.