Kerala High Court
M/S.Kerala Fashion Jewellery vs The Union Of India on 5 February, 2021
Author: A.M.Badar
Bench: A.M.Badar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942
WP(C).No.2966 OF 2021(U)
PETITIONERS:
1 M/S.KERALA FASHION JEWELLERY
D.NO PP/VI,656, MANJERI ROAD, PANDIKKAD,
MALAPPURAM - 676 521, REPRESENTED BY ITS MANAGING
PARTNER O.K BIJU 4/43, THEKKARA OLARI OLLUR,
TRISSUR - 680 306.
2 MR. O.K ROY,
S/O. OLARI, KOCHUVAREED KOCHUVARUNNI, NO. 4/562,
THEKKEKARA PERINTHALMANNA, MALAPPURAM - 679 322.
3 O.K JOJU,
S/O. OLARI KOCHUVAREED KOCHUVARUNNI, 4/43, THEKKARA
OLARI, OLLUR, TRISSUR - 680 306
4 MRS. SHEEJA ROY,
W/O. O.K ROY, RESIDING AT NO. 4/562, THEKKEKARA,
PERINTHALMANNA, MALAPPURAM - 679 322.
5 O.K BIJU,
S/O. LATE OLARI KOCHUVEED KOCHUVARUNNI, RESIDING AT
4/43, THEKKARA OLARI, OLLUR, TRISSUR - 630 306
6 SINDRELLA JOJU,
W/O. O.K JOJU, RESIDING AT 4/43, THEKKARA OLARI,
OLLUR, TRISSUR - 680 306.
7 MINI BIJU,
W/O. O.K BIJU, 4/286, NAMBADAN HOUSE, CHALAKUDY,
TRISSUR - 680 307.
8 MRS. KOCHU THRESSIA,
W/O. OLARI KOCHUVAREED KOCHUVARUNNI , 4/43, THEKKARA
OLARI, OLLUR, TRISSUR - 680 306
BY ADVS.
SRI.P.CHANDRASEKHAR
SRI.K.K.MOHAMED RAVUF
SHRI.SATHEESH V.T.
SMT.MANJARI G.B.
SRI.C.S.ULLAS
SMT.RANI MADHU
W.P.(C) No.2966/2021 2
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE
(DEPARTMENT OF FINANCIAL SERVICE),
NEW DELHI 110 001
2 THE DEBTS RECOVERY TRIBUNAL-2
(ERNAKULAM & LAKSHADWEEP) 5TH FLOOR,KERALA STATE
HOUSING BOARD BUILDING, PANAMPILLY NAGAR,
ERNAKULAM - 682 014 REPRESENTED BY ITS REGISTRAR
3 Ms.S.V.GOURAMMA
THE PRESIDING OFFICER,
DEBT RECOVERY TRIBUNAL-2
BANGALURU-560057.
4 M/S. KOTAK MAHINDRA BANK LIMITED,
REGD. OFFICE 27 BKC, C 27, G BLOCK, BANDRA KURLA
COMPLEX, BANDRA (E) MUMBAI 400 051 REPRESENTED BY
ITS MANAGING DIRECTOR
4 THE AUTHORISED OFFICER,
M/S. KOTAK MAHINDRA BANK LIMITED, BKC, C 27,
G BLOCK, BANDRA KURLA COMPLEX, BANDRA (E)
MUMBAI - 400 051.
OTHER PRESENT:
SRI.P VIJAYA KUMAR, ASG.
SRI.NAGRAJ NARAYAN - R4& R5
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.2966/2021 3
JUDGMENT
Dated this the 5th day of February 2021 Heard the learned counsel for the petitioners. The petitioners have made the following prayers in the instant writ petition.
A. Call for the records leading to the issuance of Exhibit P1 and quash Exhibit P1 to the extent that additional charge of Debt Recovery Tribunal 2 Ernakulam was given to the Presiding Officer of Debt Recovery Tribunal, Bangalore-II, by issuing a Writ of Certiorari or any other appropriate Writ, order or direction.
B. Issue a Writ of Prohibition restraining the 3rd respondent from functioning as Presiding Officer in additional charge of Debt Recovery Tribunal, Ernakulam to try, adjudicate and dispose of SA 372/2018 filed by the petitioners pending before the Debt Recovery Tribunal-2 Ernakulam as per Ext P1.
C. Issue a Writ of Mandamus to the 1st respondent to entrust the additional charge of Debt Recovery Tribunal-2 Ernakulam to any other Presiding Officer or Judicial member of any other Tribunal established and constituted under any other law for the time being in force other than the Recovery of Debts and Bankruptcy Act, 1993 functioning under the W.P.(C) No.2966/2021 4 Government of India in Ernakulam invoking section 4(2)(a) and (b) of the Recovery of Debts and Bankruptcy Act 1993 till joining of a regular incumbent as presiding officer Debt Recovery Tribunal-2 Ernakulam.
2. Learned counsel for the petitioners argued that despite availability of a Debt Recovery Tribunal (DRT) at Ernakulam, the 1st respondent, by the impugned order dated 04.01.2021, has entrusted the charge of DRT to DRT-II, Bangalore. This act on the part of the 1st respondent is totally without jurisdiction. It is urged that sub section 2 of Section 4 of the Recovery of Debts and Bankruptcy Act, 1993 deals with the provision regarding entrusting charge of the DRT. As per the provisions made in this Section, the charge of the DRT can be given to the Presiding Officer of any other Tribunal established under any other law for the time being in force. According to the learned counsel for the petitioners, in the event of non availability of Presiding Officer to man the DRT at Ernakulam, the charge ought to have been entrusted to some other Tribunal functioning in Ernakulam such as CGIT etc. My attention is drawn to the old provisions which came to be deleted with effect from 01.09.2016 to demonstrate that as per the previous provisions in W.P.(C) No.2966/2021 5 Section 4 of the Recovery of Debts and Bankruptcy Act, 1993, the charge could have been given to another DRT. With this, it is argued by the learned counsel for the petitioners that the legislature has consciously deleted this clause by substituting the same with amended provisions of sub section 2 of Section 4 which prescribes that charge of DRT can be given to Presiding Officer of any other Tribunal established under any other law for the time being in force.
3. I have considered the submissions so advanced. Prior to its substitution by Act 44 of 2016, sub section 2 of Section 4 stood as under:
"Notwithstanding anything contained in sub- section (1), the Central Government may authorise the Presiding Officer of one Tribunal to discharge also the functions of the Presiding Officer of another Tribunal".
This clause is deleted by substituting the following as sub section 2 of Section 4 of the said Act.
"4. Composition of Tribunal.- (1) ....
(2) Notwithstanding anything contained in sub- section (1), the Central Government may-
(a) authorise the Presiding Officer of any other Tribunal established under any other law for the time being in force to discharge the function of the W.P.(C) No.2966/2021 6 Presiding Officer of a Debt Recovery Tribunal under this Act in addition to his being the Presiding Officer of that Tribunal".
4. It is thus clear that the provisions of sub section 2 of Section 4 empowers the Government to authorise the Presiding Officer of any other Tribunal established under any other law for the time being in force to discharge the function of Presiding Officer of a DRT under the Recovery of Debts and Bankruptcy Act, 1993, in addition to his own functions.
5. In order to test the validity of the argument of the learned counsel for the petitioners, one will have to look into the definition of the term 'Tribunal' given in the Recovery of Debts and Bankruptcy Act, 1993. The term 'Tribunal' is defined by Section 2(o) of the said Act and the said definition reads as under:
"Tribunal means the Tribunal established under sub-section(1) of section 3".
6. It is trite that every word used in the legislation is to be given meaning. The golden rule is to adopt to the ordinary meaning of the words used and to the grammatical construction unless the same leads to manifest absurdity. The inconvenience however great would be of little consequence. Similarly, it is also well established that such interpretation as would reduce the W.P.(C) No.2966/2021 7 legislation to futility needs to be avoided.
In the case in hand, the term 'Tribunal' is defined to mean that the Tribunal established under sub section 1 of Section 3 of the Recovery of Debts and Bankruptcy Act, 1993. The Central Government is empowered to establish one or more Tribunal to be known as DRT by notification for exercising the jurisdiction, power and authority conferred on such Tribunal under the said Act. If the meaning of the word 'Tribunal' as defined by this Act is kept in mind, then it is clear that the Government can entrust the charge of one DRT to any other DRT so also to other Tribunals established under any other law for the time being in force. The provisions of sub section 2 of Section 4 cannot be read to exclude entrustment of powers of one DRT with another DRT.
In this view of the matter, this writ petition is devoid of merit and the same is accordingly dismissed.
Sd/-
A.M.BADAR JUDGE smp W.P.(C) No.2966/2021 8 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF NOTIFICATION NO. F. NO 7/1/2019-DRT DATED 04-01-2021 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE APPLICATION I.A NO.
163/2021 FILED BY THE 4TH AND 5TH RESPONDENTS TO ADVANCE THE S.A 372 OF 2018 EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONERS EXHIBIT P4 TRUE COPY OF I.A NO. 154/2021 FILED BY THE PETITIONERS FOR REOPENING THE HEARING IN SA RESPONDENTS' EXHIBITS: NIL.
True Copy P.S to Judge smp