Kerala High Court
T.S. Joseph vs The Federal Bank Ltd on 19 November, 2018
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940
WP(C).No. 26949 of 2018
PETITIONER:
T.S. JOSEPH
S/O.SAVIER, THUNDAPARAMBIL, VECHOOR,THALAYAZHAM.P.O., VAIKOM,
KOTTAYAM DISTRICT.
BY ADV. SRI.S.EASWARAN
RESPONDENTS:
1 THE FEDERAL BANK LTD.
PUTTADI.P.O., IDUKKI DISTRICT,PIN- 685 551.
2 THE DEBT RECOVERY TRIBUNAL-2
1ST FLOOR, KSHB BUILDING, PANAMPILLY NAGAR,ERNAKULAM, KOCHI-36,
REPRESENTED BY ITS REGISTRAR.
*ADDL THE RECOVERY OFFICER
R3 DRT-II, ERNAKULAM, PANAMPILLY NAGAR, KOCHI-682 036.
*( ADDL R3 IMPLEADED AS PER ORDER DATED 03.10.2018 IN I.A. NO.
01/2018)
*ADDL ROJAN XAVIER
R4 AGED 46 YEARS, S/O. XAVIER, MANAGING DIRECTOR, CARDAMAM
AUCTIONEERS, HEADER SYSTEMS (P) LTD, NEDUMKANDOM P.O, IDUKKI
DISTRICT
*ADDL MAMACHAN
R5 AGED 40 YEARS, S/O. KUNJAPPY, THOPIL HOUSE, PUTTADI P.O, IDUKKI-
685 551
*(ADDL R4&R5 IMPLEADED AS PER ORDER DATED 01.10.2018 IN I.A.
03/2018)
BY ADVS.
SRI.MOHAN JACOB GEORGE-SC
SMT.NIGI GEORGE
PARVATHY P.V
SMT.REENA THOMAS
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2018, ALONG WITH
WP(C).26972/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos. 26949 & 26972 of 2018
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940
WP(C).No. 26972 of 2018
PETITIONERS:
1 BINU VINCENT
S/O.M.A.VINCENT,MANNANAL HOUSE, PUTTADI P.O.,ANAKKARA VILLAGE,
UDUMBANCHOLA,IDUKKI - 685 551.
2 MINI VINCENT
D/O.M.A.VINCENT, MANNANAL HOUSE, PUTTADI P.O.,ANAKKARA
VILLAGE,UDUMBANCHOLA, IDUKKI - 685 551.
BY ADV. SRI.S.EASWARAN
RESPONDENTS:
1 THE FEDERAL BANK LTD.
PUTTADI P.O.,IDUKKI DISTRICT,PIN - 685 551.
2 THE DEBT RECOVERY TRIBUNAL-2
1ST FLOOR, KSHB BUILDING,PANAMPILLY NAGAR,ERNAKULAM,
KOCHI - 36,REPRESENTED BY ITS REGISTRAR.
*ADDL HEADER SYSTEMS (P) LTD.
R3 CARDAMOM AUCTIONEERS, NEDUMKANDOM PO., IDUKKI DISTRICT, PIN -
685553, REPRESENTED BY ITS EXECUTIVE DIRECTOR SRI.ROJAN XAVIER.
*(ADDL.R3 IMPLEADED VIDE ORDER DATED 03.10.2018 IN IA 4/2018.)
*ADDL THE RECOVERY OFFICER
R4 DRT-II, ERNAKULAM, PANAMPALLY NAGAR, KOCHI-682036.
*(ADDL.R4 IMPLEADED VIDE ORDER DATED 08/10/2018 IN
IA.NO.01/2018)
BY ADVS.
SRI.MOHAN JACOB GEORGE-SC
SMT.NISHA GEORGE
PARVATHY P.V
SMT.REENA THOMAS
SMT.G.SAVITHA
SMT.JIJI M. VARKEY
SRI.M.M.SHAJAHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2018, ALONG WITH
WP(C).26949/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).Nos. 26949 & 26972 of 2018
3
JUDGMENT
The petitioners in these two writ petitions concedely had borrowed certain amounts of money from the respondent- Federal Bank and when the said loan turned out of order, the bank initiated action under the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, ('Act' for short); which culminated in a Recovery Certificate being issued in its favour, and consequently the Recovery Officer attached to the Debts Recovery Tribunal (DRT for short), Ernakulam, issued a sale notice bringing the mortgaged property to sale.
2. One among the petitioners is the mortgager and the petitioners allege that the action of the Recovery Officer in having issued the impugned notice is illegal, irregular and impermissible. On such allegations, it transpires that the petitioners had approached the DRT, Ernakulam, through a statutory appeal Nos.4/2016 and 5/2016 impugning the sale notice issued by the Recovery Officer, but the same were dismissed by the DRT on various grounds.
3. Certain corollary issues have also been raised in WP(C).Nos. 26949 & 26972 of 2018 4 these appeals with respect to an Award passed under the provisions of the Legal Services Authorities Act, 1987, as per a reference that made by the DRT to enable the parties to enter into an out of court settlement and the DRT appears to have touched upon it briefly in the impugned orders, but holding that it has no jurisdiction on such matters.
4. The petitioners have also attempted to challenge the validity of the afore mentioned Award issued under the Legal Services Authorities Act on certain particular allegations, with which I do not, however, propose to deal with in detail on account of the nature of the directions that I propose in these two writ petitions. Nevertheless, the fact remains that the orders impugned before me are orders of the DRT, under Section 30 of the Act.
5. Since the orders impugned before me are issued by the DRT under Section 30 of the Act, it is ineluctable that the petitioners have an alternative, efficacious remedy of filing an appeal against those orders before the Debt Recovery Appellate Tribunal, Chennai. Even the petitioners do not have a case that they are in any manner incapacitated from invoking that WP(C).Nos. 26949 & 26972 of 2018 5 remedy, but they say that the reason that they have approached this Court is because, the DRT has concluded in the impugned orders that it has no jurisdiction to look into the validity of the Award issued under the provisions of the Legal Services Authorities Act and therefore, that the petitioners are compelled to approach this Court by assailing the said Award.
6. Even though I hear Sri.S.Easwaran, the learned counsel for the petitioners, in the afore lines, the ineluctable fact is that the challenge to the Award issued under the Legal Services Authorities Act, is only a ground on which the petitioners have sought to challenge the sale notice issued by the Recovery Officer of the DRT. Therefore, the order now impugned before me is essentially an order under Section 30 of the Act and since there is an alternative remedy against it, it would not be justifiable for this Court to sit in evaluation of the merits of that order, because if the petitioners invoke the alternative remedy before the DRAT, they would also obtain the locus to make all corollary contentions, including on the validity of the Award, if they are so advised, and it will certainly be upto the DRAT to decide the justiciability of all these issues, WP(C).Nos. 26949 & 26972 of 2018 6 including maintainability as per law and in terms of the provisions of the applicable Statutes, Rules and Regulations. Merely because a corollary challenge has been made to the Award issued under the Legal Services Authorities Act, which challenge has been made solely in order to sustain an appeal under the Act, I do not deem it apposite or appropriate that I allow the petitioners to challenge those orders before this Court, when alternative remedies are available.
7. In the afore circumstances, leaving the petitioners liberty to invoke all alternative remedies as are available, and without considering the merits of any of the contentions of either of the parties in these cases, I deem it appropriate to close this writ petition; however, recording the submission of Sri.Mohan Jacob George, learned counsel for the bank that it will not seek confirmation of the sale already conducted for a period of twenty one days from today (until 09.12.2018).
8. I make it clear that since I have not considered the merits of any of the contentions of the either of the parties including issues relating to the Award under the Legal Services Authorities Act, they will all be left open for them to pursue an WP(C).Nos. 26949 & 26972 of 2018 7 agitate appropriately, without being in any manner fettered or trammeled by these proceedings.
9. Needless to say, if the petitioners are not able to obtain appropriate orders from the DRT within the time granted herein, the bank would be at liberty to proceed further with respect to confirmation of the same, after 09.12.2018.
This writ petition is thus ordered.
Sd/-
DEVAN RAMACHANDRAN
rp-19.11 JUDGE
WP(C).Nos. 26949 & 26972 of 2018
8
APPENDIX OF WP(C) 26949/2018
PETITIONER'S EXHIBITS:
EXT P1 COPY OF OA NO.31/2006 FILED BY THE 1ST RESPONDENT
BEFORE DRT.
EXT P2 COPY OF THE AWARD PASSED ON 20/02/2010 BY THE LOK
ADALATH BEFORE THE DISTRICT COURT, ERNAKULAM. EXT P3 COPY OF THE RECOVERY CERTIFICATE NO.3486 IN OA.NO.31/2006.
EXT P4 COPY OF THE MEMORANDUM OF APPEAL NO.4/2016 FILED BEFORE THE DEBT RECOVERY TRIBUNAL BY THE PETITIONER.
EXT P5 COPY OF I.A NO.1577/2016 IN O.A NO.31 OF 2006 BY THE PETITIONER.
EXT P6 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BANK IN APPEAL NO.4 OF 2016.
EXT P7 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT TO IA NO.1577/2016.
EXT P8 COPY OF THE ORDER DATED 31/07/2018 IN APPEAL NO.4/2016 (TR.APPEAL NO.3/2017).
WP(C).Nos. 26949 & 26972 of 2018 9 APPENDIX OF WP(C) 26972/2018 PETITIONER'S EXHIBITS:
EXHIBIT P1 COPY OF THE AWARD PASSED ON 20/2/2010 BY THE LOK ADALATH BEFORE THE DISTRICT COURT ERNAKULAM.
EXHIBIT P2 COPY OF THE RECOVERY CERTIFICATE NO.3486 IN OA NO.31/2006.
EXHIBIT P3 COPY OF THE MEMORANDUM OF APPEAL NO.5/2016 FILED BEFORE THE DEBT RECOVERY TRIBUNAL BY THE PETITIONERS.
EXHIBIT P4 COPY OF I.A.NO.1578/2016 IN O.A.NO.31 OF 2006 BY THE PETITIONERS.
EXHIBIT P5 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BANK IN APPEAL NO.5 OF 2016.
EXHIBIT P6 COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT TO IA NO.1578/2016.
EXHIBIT P7 COPY OF THE ORDER DATED 31/7/2018 IN APPEAL NO.5/2016 (TR.APPEAL NO.1/2017).