Ideal Powertech Ltd. and Others v State Bank of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944** **OP (DRT) NO. 212 OF 2021** ## **PETITIONERS:** 1 M/S.IDEAL POWERTECH LTD., 43/1905, NETHAJI NAGAR, ELAMKULAM, KADAVANTHRA POST, COCHIN - 682 020, REPRESENTED BY ITS MANAGING DIRECTOR THOMAS EASAW 2 M/S. THOMAS EASAW LTD.,. 43/1905, NETHAJI NAGAR, ELAMKULAM, KADAVANTHRA POST, COCHIN - 682 020, REPRESENTED BY ITS MANAGING DIRECTOR THOMAS EASAW 3 MR. THOMAS EASAW, AGED 56 YEARS, S/O.MATHAI EASAW, 95, JAWAHAR NAGAR, KADAVANTHRA, COCHIN - 682 020. 4 MRS. GRACE THOMAS, AGED 53, W/O.MATHAI EASAW, 95, JAWAHAR NAGAR, KADAVANTHRA, COCHIN - 682 020. 5 MR.MATHAI EASAW, AGED 97 YEARS, S/O.MATHAI EASAW, REPRESENTED BY POA HOLDER, MR. THOMAS EASAW, 95, JAWAHAR NAGAR, KADAVANTHRA, COCHIN - 682 020. BY MR.THOMAS EASAW (Party-In-Person) ## **RESPONDENT:** STATE BANK OF INDIA M.G.ROAD BRANCH, MG ROAD, ERNAKULAM - 682 011, REPRESENTED BY ITS BRANCH MANAGER BY ADVS. GEORGE THOMAS (MEVADA)(SR.) AMAL GEORGE THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (DRT) NO. 212 OF 2021 2 ## **JUDGMENT** Petitioners have approached this Court praying for the following reliefs: _“a) Direct the Debts Recovery Tribunal – II, Ernakulam to stay proceedings in DRC 105/2019 in TA 210/2017 till MA 75/2021 in TA 210/2017 is heard and decided._ _b) Issue any other appropriate writ, order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case._ _c) Award the costs of the petitioners in these proceedings.”_ 2. Miscellaneous Application No.75/2021 (Ext.P1) is an application filed before the Debt Recovery Tribunal seeking stay of proceedings in DRC No.105/2019 in T.A.No.210/2017 principally on the ground that the Registry of the Debt Recovery Tribunal has not issued certified copies of the complete proceedings on an interlocutory application which according to the petitioner is “ _very essential in proving prejudice and bias by the Presiding Officer Smt. S.V. Gowramma of outrightly disobeying the Hon'ble High Court's orders in O.P.(DRT)No.36/2018 and to prove destruction of evidence by the same Presiding Officer by tampering the Court_ OP (DRT) NO. 212 OF 2021 3 _documents, as a result of which the petitioners have not been able to file any appeal against the orders in T.A.No.210/2017 till date.”_ 3. The Managing Director of the 1[st] petitioner Mr.Thomas Easaw, appears party-in-person and states that he may be permitted to prosecute these proceedings because he holds power of attorney on behalf of 5th petitioner. He states that the 4[th] petitioner is also present in Court today. At the outset I must observe that it is doubtful as to whether the 3rd petitioner can represent petitioners 4 and 5 in these proceedings and argue the case on their behalf. However, I do not intend to decide this matter on that basis since the interest of the petitioners are common and the 3[rd] petitioner is at any rate entitled to present his case before this Court. 4. Though the prayer in the original petition is limited to a direction to stay the proceedings in DRC No.105/2019 in T.A.No.210/2017 till M.A.No.75/2021 is heard and decided, the 3[rd] petitioner, who appears party-in-person has argued the matter at length also with reference to the application filed in this case for amendment and for impleading additional respondents. The respondents have also argued the matter in detail. 5. Mr.Thomas Easaw, the 3[rd] petitioner has raised the following contentions. He refers to the paper book in O.A.No.15 of OP (DRT) NO. 212 OF 2021 4 2006 (which was later re-numbered as T.A.No.210 of 2017) to point out that though the pleadings are dated 01.01.2006, the banker's cheque for payment of the fee was taken on 02.01.2006. It is his submission that the banker's cheque itself was pre-dated and it had not been issued even on 02.01.2006. It is submitted that the counsel for the Bank, in collusion with the Presiding Officer and other officers in the Debts Recovery Tribunal, had permitted the Bank to file the O.A after the period of limitation had expired. It is submitted that according to the Bank, the limitation expired on 01.01.2006 and the above facts show that no O.A was filed within the period of limitation. It is submitted that, actually, the period of limitation had expired on 01.01.2001. Secondly it is pointed out that despite the order of this Court (in OP (DRT) Nos.36 and 37 of 2017 dated 21.05.2018) to hear and dispose of the Original Application filed by the Bank under the Recovery of Debts due to Banks and Financial Institutions Act and the securitisation application filed by the petitioners against the proceedings initiated against them under the provisions of the SARFAESI Act, simultaneously, the then Presiding Officer of the Debts Recovery Tribunal had proceeded to violate this order. Thirdly, it is submitted that in order to prove the _“fraud committed on the petitioners by the Tribunal in connivance with the counsel appearing for the Bank and in order to prove the violation of_ OP (DRT) NO. 212 OF 2021 5 _the directions issued by this Court in O.P(DRT)Nos.36 and 37 of 2018”_ , the petitioners had requested for issuance of certified copies of certain documents and the Tribunal refused to issue certified copies. According to the petitioners this was done on the instructions of the then Presiding Officer. Fourthly, it is submitted that the entire claim put-forth by the Bank is liable to be rejected for the reason that the loan transaction is not supported by any agreement. Lastly, it is submitted that the proceedings conducted by the Debts Recovery Tribunal in the Original Application filed by the Bank and the Securitisation application filed by the petitioners are _mala fide_ and that the proceedings were concluded against the petitioners solely on account of the fact that the petitioners had raised an allegation that the Original Application filed by the Bank was accepted on file beyond the period of limitation owing to an unholy alliance between the lawyer appearing for the Bank and the then Presiding Officer and other officers in the DRT. Mr.Thomas Easaw also contends that when this matter was taken up consideration before this Court on 01.11.2021, this Court had directed the petitioners to file an application for amendment incorporating the allegations raised against the various Presiding Officers of the DRT, who are sought to be impleaded in this original petition and also to bring all persons against whom personal OP (DRT) NO. 212 OF 2021 6 allegations are made (including the lawyer appearing for the respondent Bank) on record in this case. He states that it is accordingly that the petitioners have filed I.A.No.1 of 2022 in the above Original Petition seeking impleadment, amendment etc. 6. The learned Senior Counsel appearing for the respondent Bank instructed by Mr.Amal George would submit that the filing of the Original Petition is nothing but an abuse of process of Court. It is stated that petitioners have been trying to delay the process of recovery initiated by the Bank by raising unnecessary and unwanted allegations. It is submitted that the Original Application was clearly filed within the period of limitation. It is submitted that 01.01.2006 was a Sunday and the banker's cheque for payment of fee was issued by the concerned branch of the respondent Bank on 02.01.2006. Reference is made to paragraph 34 of the order of the Tribunal in T.A.No.210 of 2021 to show that the contention of the petitioners that the banker's cheque was pre-dated is absolutely without any basis. It is submitted that the banker's cheque in question was encashed by the Tribunal on 13.01.2006. It is submitted that the date of creation of mortgage is 30.04.1998 and going by Article 62 of the schedule to the Limitation Act, the period of limitation is 12 years from the date on which the money sued for becomes due. It is submitted that the Original Application was filed OP (DRT) NO. 212 OF 2021 7 within 12 years from the date on which the mortgage itself was created and there cannot be any argument raised that the Original Application was filed beyond the period of limitation. It is submitted that there is absolutely no fraud as alleged by the petitioners and no advantage whatsoever has been gained by the Bank by committing any manipulation as is now alleged. It is submitted that even if the Original Application had been filed on the date on which the banker's cheque was encashed, namely 13.01.2006, the same was within the period of limitation. It is submitted that the contention of the petitioners that the Tribunal had not decided the Original Application filed by the Bank and the Securitisation application filed by the petitioners simultaneously as directed in the judgment in OP(DRT)Nos.36 and 37 of 2018 is absolutely fallacious. It is submitted that even assuming that the Tribunal had not complied with the said direction, this Court had while disposing of the Original Petitions had directed that if the matters are adjourned beyond 12.06.2018, the Tribunal will be free to dispose of the matters separately as well. It is submitted that the Bank has no objection whatsoever in the Tribunal in issuing certified copy of any proceedings that may be available with the Tribunal, on proper application. It is submitted that this Court had never directed the petitioners to implead the persons in respect of whom the OP (DRT) NO. 212 OF 2021 8 allegations have been made and had only refused consideration of the matter taking note of the allegations in the above Original Petition as filed in this Court. It is submitted that misusing the observation of this Court, an amended petition has been filed before this Court raising all sorts of false and unsubstantiated allegations against the various Presiding Officers of the DRT, its Registrars, its Court Officers and the counsel appearing for the Bank before the DRT. 7. The learned Assistant Solicitor General appearing for the Tribunal states with reference to the document marked as Ext.P23 along with I.A.No.1 of 2022 (letter No.TSA37/2017 dated 27.09.2019) that the office of the Tribunal had entertained the request made by the petitioners for issuance of certified copies and that the Tribunal had only pointed out that the record of a document which was not available could not be issued as a certified copy. It is submitted that nothing turns on the fact that the Tribunal did not consider the original application filed by the bank and the securitisation application filed by the petitioners simultaneously, as no sort of prejudice has been caused to the petitioners in that regard. He reiterates the directions issued by this Court in O.P.(DRT) Nos.36 and 37 of 2018 and states that the Tribunal was well within its rights to consider the matters separately also. OP (DRT) NO. 212 OF 2021 9 8. The learned counsel appearing for the respondent bank submits that even assuming without conceding that the contention of the petitioners that there was no loan agreement executed by the petitioners with the bank is true, that will not absolve the petitioners from the liability to pay the amounts due to the bank. It is submitted that there cannot be any doubt, whatsoever, that the loans were sanctioned and the petitioners had availed the same. It is submitted that the creation of mortgage also cannot be disputed as the original title deeds of the mortgaged properties are with the bank. It is submitted that by making false and irrelevant assertions, availment of the loans and the creation of the mortgage cannot be disputed, as held by the Hon’ble Supreme Court in **K.J. Nathan** v. **S.V. Maruthi Rao and others [AIR 1965 SC 430]** . 9. The petitioners through Mr.Thomas Easaw submit that several of the documents including the revival letters produced by the bank were blank documents and nothing turns on those documents. It is submitted that several documents produced by the petitioners along with an affidavit have not been marked in evidence by the Tribunal. 10. The learned Senior Counsel appearing for the respondent bank submits that even assuming without conceding OP (DRT) NO. 212 OF 2021 10 that the revival letters etc. are not valid as is now contended, the original application was filed well within the period of limitation and even if the revival letters are ignored, the rights of the bank to recover the amounts due from the petitioners are not affected in any manner. It is submitted that only documents which are produced along with a proof affidavit will be marked on the side of the respective parties before the Tribunal and the petitioners have no case that they had produced any document in the original application along with a proof affidavit. 11. I have considered the contentions raised by Mr.Thomas Easaw on behalf of the petitioners, the learned Assistant Solicitor General appearing on behalf of the Tribunal and also the learned Senior Counsel appearing for the respondent bank. 12. The contention of Mr. Thomas Easaw on behalf of the petitioners that the mismatch in the date, namely 01.01.2006, shown in the O.A. and the date on which the banker’s cheque was taken, does not lead me to conclude that any fraud was played on the petitioners for the simple reason that the banker’s cheque was encashed on 13.01.2006 and the original application was within the period of limitation even on that date. Therefore, in other words, even if I were to assume that the original application was filed only on 13.01.2006 (the date on which the banker’s cheque OP (DRT) NO. 212 OF 2021 11 issued by the bank for satisfying the court fee liability, was encashed) that does not mean that the original application was filed beyond the period of limitation. It is not disputed before me that the date on which the documents were deposited for creating the mortgage is on 30.04.1998. Though the petitioners have a case that there is no valid creation of a mortgage, that too cannot be accepted in the light of the law laid down by the Supreme Court in **Nathan** _(supra),_ for it is clear that the original documents in relation to the properties mortgaged with the bank are in the custody of the bank. That coupled with the fact that the petitioners have clearly availed the facilities offered by the bank, (which again is not a fact disputed before me) leads me to conclude that the original application is filed within the period of limitation as the period of limitation is that applicable under Article 62 of the Schedule to the Limitation Act, which provides for a limitation of 12 years from the date on which the money sued for becomes due. 13. Taking note of the directions contained in the common judgment of this Court in O.P.(DRT) Nos.36 and 37 of 2008, it is clear that if the matters were to be adjourned beyond 12.6.2018, it is open to the Tribunal to hear the matters separately. It is not disputed that the matters were adjourned beyond 12.6.2018 and OP (DRT) NO. 212 OF 2021 12 no prejudice, whatsoever, was caused to the petitioners on account of the failure of the Tribunal, if at all, in hearing the matters separately, without hearing them simultaneously, as directed by this Court in O.P.(DRT) Nos.36 and 37 of 2018. 14. I also find that the learned Assistant Solicitor General is right in pointing out that it is clear from Ext.P23 that no certified copy, which the petitioners were entitled to obtain, has been denied to them. The petitioners have no case supported by affidavit that they had conducted inspection of the documents and the statements in Ext.P23 produced along with I.A.No.1/2022 are incorrect in any manner. 15. I have also gone through the averments and contentions taken in I.A. No.1/2022 in support of the prayer for amendment and impleadment of parties. The said amendment application appears to contain baseless and reckless allegations against various Presiding Officers, Registrars and other staff members of the Tribunal as also against the lawyer who appeared for the bank before the Tribunal. It would be an abuse of process of this court to allow the petitioners to raise the allegations raised in I.A. No.1/2022 in this original petition. Therefore, the prayer for amendment and impleadment of parties in I.A. No.1/2022 is rejected, though, for the purpose of deciding the points raised, OP (DRT) NO. 212 OF 2021 13 reference is made to various documents produced along with that Interlocutory Application. This original petition fails and is accordingly dismissed. Sd/- **GOPINATH P. JUDGE** DK/okb OP (DRT) NO. 212 OF 2021 14 ## **APPENDIX OF OP (DRT) 212/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE STAY PETITION MA 75/2021 IN DRC 105/2019 IN TA 210/2017 FILED AT THE DEBTS RECOVERY TRIBUNAL2, ERNAKULAM. Exhibit P2 TRUE COPY OF THE RECUSAL PETITION IA 45/2021 IN DRC 105/2019 IN TA 210/2017 FILED BEFORE THE RECOVERY OFFICER 1, DRT 2 ERNAKULAM Exhibit P3 TRUE COPY OF THE INTERIM STAY PETITION MA 174/2021 IN DRC 105/2019 IN TA210/2017 DATED 18.10.2021 FILED AT THE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM. Exhibit P4 TRUE COPY OF THE URGENT PETITION MA 173/2021 IN DRC 105/2019 IN TA210/2017 DATED 18.10.2021 FILED AT THE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM.