JAIHIND TRAVELS (P) LTD. v. DHANALAKSHMI BANK LTD. AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 27TH DAY OF MAY 2019 / 6TH JYAISHTA, 1941** ## **OP (DRT).No. 71 of 2019** **AGAINST THE ORDER/JUDGMENT IN SA 191/2018 of DEBT RECOVERY TRIBUNAL-I, ERNAKULAM** ## **PETITIONERS/APPLICANTS:** **1 M/S.JAIHIND TRAVELS (P) LTD. BEHIND SONY CENTRE, 39/4187, M.G.ROAD, RAVIPURAM, KOCHI-682016, REPRESENTED BY ITS DIRECTOR THOMAS KURUVILA.** **2 MATHEW GEORGE KURUVITHADAM HOUSE, PERUMPALOOR, MUVATTUPUZHA, ERNAKULAM-686673.** **3 MARIAMMA MATHEW KURUVITHADAM HOUSE, PERUMPALOOR, MUVATTUPUZHA, ERNAKULAM-686673.** **BY ADVS. SRI.V.K.PEERMOHAMED KHAN SRI.C.J.CHACKO SRI.K.K.CHANDRAN PILLAI (SR.) SRI.V.RENJITH** ## **RESPONDENTS/DEFENDANTS AND DRT:** - **1 DHANALAXMI BANK LTD., SHANMUGHAM ROAD BRANCH, ERNAKULAM.** - **2 THE AUTHORISED OFFICER, DHANALAXMI BANK LTD., SHANMUGHAM ROAD BRANCH, ERNAKULAM.** **3 M/S.REAL VIDEO IMPACTS (P)LTD., GROUND FLOOR, A-2/23, SAFDARJUNG ENCLAVEN, NEW DELHI-110029, REPRESENTED BY ITS MANAGING DIRECTOR. 4 MR.E.P.GEORGE, EDATHURUTHIKARAN HOUSE, JUDGES AVENUE,** **OP (DRT).No. 71 of 2019** **2** ## **KALOOR, KOCHI-682017.** - **5 MR.K.N.MARZOOK, RATNAPURI, ERG ROAD, KOCHI-682014.** - **6 M/S.INDIA MIDDLE EAST BROAD CASTING NETWORKING (P) LTD., KCCI BUILDING, SHANMUGHAM ROAD, KOCHI-682031, REP. BY ITS AUTHORISED SIGNATORY.** **BY ADV.** **SRI.C.K.KARUNAKARAN,SC,DHANALAKSHMI BANK** **THIS OP (DEBT RECOVERY TRIBUNAL) HAVING BEEN FINALLY HEARD ON 27.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (DRT).No. 71 of 2019** **3** ## **JUDGMENT** The petitioners concede to be the borrowers of certain sums from the Dhanalaxmi Bank, of which the 2[nd] respondent is the Authorised Officer. They say that the Bank has already taken certain action/measures under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity) and that they have challenged such measures by filing S.A.No.191/2018 (hereinafter referred to as S.A. for short). 2. According to the petitioners, pending the afore S.A., the Bank took certain fresh measures and therefore, that they were constrained to prefer Exts.P5&P7 applications for its amendment, to bring in additional grounds as also adding additional reliefs. They say that the Debts ## **OP (DRT).No. 71 of 2019** ## **4** Recovery Tribunal (DRT for short), however, is not considering the said applications, presumably because it feels that the petitioners must file a fresh Securitisation Application, rather than seek an amendment of the pending SA, because the fresh action taken by the Bank leads to a fresh cause of action. 3. The petitioners submit that this Court has already considered this matter in _**Veena**_ _**Prabhakumar and Another v. Dhanalaxmi Bank and another (OP(DRT)No.48/2019 dated 10.04.2019)**_ and has found in favour of the proposition that the DRT is enjoined in law to consider applications for amendment to pending Securitisation Applications; however, in the manner stipulated in the said judgment. 4. The learned Standing Counsel for the respondent-Bank, Sri.C.K.Karunakarn, submits that the non-consideration of Exts.P5&P7 applications **OP (DRT).No. 71 of 2019** **5** do not cause any prejudice to the petitioners, since they have full liberty of filing a fresh Securitisation Application with respect to the fresh measures taken by the Bank. He, however, affirms that the judgment of this Court in _**Veena Prabhakumar**_ ( _supra_ ) clearly declares the law that an application of the nature of Exts.P5&P7 are obligated to be considered by the DRT in the manner directed therein. 5. When I consider the submissions of the parties as afore, there is no doubt that these issues have already gained the attention of this Court in _**Veena Prabhakumar**_ ( _supra_ ). The declaration of law in the said judgment is as under: In summation, I am of the certain opinion that since neither the SARFAESI Act or the RDB Act prohibits amendments to pleadings, the DRT is well within its powers to consider applications for such purpose, on the basis of the procedural guidelines available from Order 6, Rule 17 of the CPC, **OP (DRT).No. 71 of 2019** **6** and to consider if such amendments be allowed or otherwise. However, while doing so, the DRT must exercise requisite circumspection and be careful not to allow amendments carrying challenge to the subsequent measures/steps taken by a Bank/Financial Institution, if they have been made beyond the period of limitation for making such challenge through a fresh Securitisation Application; though amendments to the pleadings, without a prayer against it, to bring on record subsequent events/steps, may be possible. Further, it is needless to say specifically that merely because the Bank or the Financial Institution takes additional or fresh steps/measures pending an SA, it may not always be rendered infructuous and this will depend on the prayers originally made and will be upto the DRT to decide this on a case to case basis, adverting to all relevant and germane facts, circumstances and inputs. In the afore circumstances, I set aside Exhibit P6 order and direct the DRT to reconsider Exhibit P4 application of the petitioner in terms of law, after affording necessary opportunities to all sides; and to thereafter issue an appropriate order thereon, as expeditiously as is possible, **OP (DRT).No. 71 of 2019** **7** but not later than one month from the date of receipt of a copy of this judgment. Needless to say, until such time as the afore exercise is completed, all further action being pursued by the Bank under the SARFAESI Act shall stand deferred. 6. Since the legal situation in this case, though not its intricate factual details, is analogous with that noticed in the _**Veena Prabhakumar**_ ( _supra_ ); and the question of law, as to whether the DRT can entertain applications for amendment of a pending S.A., having been answered conclusively by this Court, I am certainly of the view that I am justified in following the same view while disposing of this Original Petition also. In the afore circumstances, I order this Original Petition and direct the DRT to take up Exts.P5&P7 applications and consider the same in terms of law, after affording all reasonable opportunity to the parties, adverting to the observations and directions in _**Veena Prabhakumar**_ **8** **OP (DRT).No. 71 of 2019** ( _supra_ ) implicitly. This exercise shall be completed by the DRT as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. This Original Petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** PV **OP (DRT).No. 71 of 2019** **9** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF APPLICATION IN SA NO.191/2018 WITHOUT ANNEXURES. EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS 1 AND 2 HEREIN WITHOUT ANNEXURES. EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT WITHOUT ANNEXURES. EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS HEREIN IN OA NO.125/2017 OF THE DRT, ERNAKULAM. EXHIBIT P5 TRUE COPY OF THE PETITION FOR AMENDMENT IN IA NO.176/2019 IN SA NO.191/2018. EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 1 AND 2 IN IA NO.176/2019 WITHOUT THE ANNEXURES. EXHIBIT P7 TRUE COPY OF PETITION FOR AMENDMENT IN IA NO.724/2019 IN SA NO.191/2018. EXHIBIT P8 TRUE COPY OF PETITION FOR JOINT TRIAL AND DISPOSAL IN IA NO.719/2019. EXHIBIT P9 TRUE COPIES OF THE PETITION IN IA NO.2298/2018 IN OA NO.125/2017 FILED BY THE PETITIONERS AND THE COUNTER AFFIDAVIT THEREON.** **\\TRUE COPY//** **PA TO JUDGE** **PV**