Kerala High Court
Margret Mary Mathew vs The Debts Recovery Tribunal on 12 November, 2019
Author: S.V.Bhatti
Bench: S.V.Bhatti
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941
OP (DRT).No.185 OF 2019
AGAINST THE ORDER/JUDGMENT IN SA 210/2011 OF DEBT RECOVERY TRIBUNAL,
ERNAKULAM
PETITIONER/S:
MARGRET MARY MATHEW
RESIDING AT TC NO.11/991(1), DLRA 18, DEVASWOM LANE,
KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM, KERALA,
PIN-695 004.
BY ADV. SRI.SUMODH MADHAVAN NAIR
RESPONDENT/S:
1 THE DEBTS RECOVERY TRIBUNAL
ERNAKULAM BENCH II, REPRESENTED BY ITS REGISTRAR, 1ST FLOOR,
K.S.H.B. BUILDING, PANAMPALLY NAGAR, KOCHI, PIN-682 036.
2 BANK OF BARODA,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, BARODA
CORPORATE CENTRE, PLOT NO.C-26, G-BLOCK, BANDRA KURULA
COMPLEX, BANDRA(EAST), MUMBAI, PIN-400 051.
3 AUTHORISED OFFICER (SRI 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 SRI.DAMODAR,
ASST.REGIONAL MANAGER, REGIONAL OFFICE, BANK OF BARODA,
VASUDEVA BUILDING, T.D.ROAD, ERNAKULAM, KOCHI, PIN-682 011.
6 SRI.KAMATH,
DEPUTY REGIONAL MANAGER, REGIONAL OFFICE, BANK OF BARODA,
VASUDEVA BUILDING, T.D.ROAD, ERNAKULAM, KOCHI-682 011.
7 ABRAHAM ZACHARIA,
RESIDING AT TC NO.11/991(1), DLRA 18, DEVASWOM LANE,
KESAVADASAPURAM, PATTOM P.O.,THIRUVANANTHAPURAM, PIN-695004.
SC R. REMA
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON
12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (DRT) No.185 OF 2019(O)
-2-
JUDGMENT
Dated this the 12th day of November, 2019 Heard Adv.Sumod Madhavan Nair appearing for petitioner, for considerable length of time.
2. Every conceivable objection available against Ext.P4 order dated 07.05.2018 has been canvassed. The main circumstance required to be noticed, while disposing of the instant O.P.(DRT), is that the petitioner herein is arrayed as 6 th respondent in T.S.A No.197/2016 (S.A No.210/2011). The Authorised Officer, Bank of Baroda/3rd respondent herein filed the Ext.P2 memo. Ext.P2 was considered by the Debts Recovery Tribunal and Ext.P4 order was made.
3. The petitioner complaints that the termination of proceeding in T.S.A No.197/2016 is completely illegal and beyond the jurisdiction of Debts Recovery Tribunal. The petitioner while assailing Ext.P4 order, canvases that the Debts Recovery Tribunal failed to appreciate the commonality OP (DRT) No.185 OF 2019(O) -3- of interest involved in the subject matter of notice impugned in T.S.A No.197/2016 between Sri.Abraham Zacharia and the petitioner herein. A notice which is non est in the eye of law is overlooked by the order dated 07.05.2018. Therefore, the petitioner at her instance, prays for revival of lis in T.S.A No.197/2016.
4. Adv.Sumod Madhavan Nair, draws the attention of the court to the judgment dated 26.02.2019 in O.P.(DRT) No.34/2019 filed by Sri.Abraham Zacharia against the endorsement impugned in the O.P.(DRT). The operative portion of the said judgment reads as follows:
"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.185 OF 2019(O) -4-
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."
5. The compliant of petitioner against Abraham Zacharia is that without impleading the petitioner herein, O.P. (DRT) No.34/2019 was filed and a judgment is taken. Therefore, at every stage without hearing the petitioner, orders adversely affecting the interest of the petitioner are being passed.
6. Adv.R.Rema appearing for the bank, contends that the bank had the responsibility to sustain the notices issued by the bank, in pending in T.S.A No.197/2016. The bank for valid reasons, if intends to withdraw the notices and proceeds afresh in accordance with law, such step for all purposes amounts to accepting the challenge laid by the applicant in T.S.A No.197/2016 against the notices issued by the respondent bank. Firstly, the petitioner as on date, cannot be OP (DRT) No.185 OF 2019(O) -5- treated as in any way, adversely affected and secondly, the petitioner stands in no way better than the grievances canvassed by Sri.Abraham Zacharia by filing O.P.(DRT) No.34/2019 and the petitioner can also if circumstances permit, can avail the remedy before the Debts Recovery Tribunal, for all reliefs in this behalf.
7. After perusing the record, this Court is of the view that liberty can be given to the petitioner as has been done in O.P.(DRT) No.34/2019, to file an application for review, before Debts Recovery Tribunal in accordance with law and press for all reliefs.
By granting the same liberty, the Original Petition is disposed of.
Sd/-
S.V.BHATTI JUDGE JS OP (DRT) No.185 OF 2019(O) -6- 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 AND FILED IN T.S.A.NO.197/2016 BY THE 3RD RESPONDENT-AUTHORIZED OFFICER.
EXHIBIT P3 TRUE PHOTOCOPY OF IA NO.392/2018 WITH AFFIDAVIT DATED 16.02.2018, FILED BY THE APPLICANT IN THE T.S.A.NO.197/2016 FOR HEARING AND CONSIDERING THE SAME ON MERIT RESPONDENT TRIBUNALO DATED 07.05.2018 IN T.S.A.NO.197/2016.
EXHIBIT P4 TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 07.05.2018 IN TSA NO.197/2016.
EXHIBIT P5 TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.RAVEENDRAN TO THE PETITIONER DATED 9TH NOV.2019.