M/S P.T. Mathai Construction Company Ltd. v. Sophine Vinay; Canara Bank; The Authorised Officer Canara Bank; Savio

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN** **& THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932** **RP.No. 1173 of 2009()** **------------------------------AGAINST THE JUDGEMENT/ORDER IN WA.105/2009** **....................** **REVIEW PETITIONER(S): 4TH RESPONDENT IN W.A.** **-------------------------------------------------------------------------** **M/S.P.T.MATHAI CONSTRUCTION COMPANY LTD. KV 29, PANAMPILLY NAGAR, KOCHI 682 036 REPRESENTED BY DIRECTOR & CHIEF EXECUTIVE OFFICER ROJER MATHEW.** **BY ADV. SRI.K.L.VARGHESE, SENIOR ADVOCATE SMT.SANTHA VARGHESE** ## **RESPONDENT(S): APPELLANT IN W.A. WRIT PETITIONER** **----------------------------------------------------------------------------------** **1. SMT. SOPHINE VINAY DOOR NO.EL/CC 56/874 SION NAGAR, KONTHURUTHY,KOCHI 682 015, NOW RESIDING AT PEARL HOUSE-101 KUMARANASAN ROAD KADAVANTHRA, KOCHI 682 020.** **2. M/S. CANARA BANK, OVERSEAS BRANCH KARUNA BUILDINGS, M.G.ROAD, ERNAKULAM REP BY CHIEF MANAGER.** **3. THE AUTHORISED OFFICER CANARA BANK, OVERESEAS BRANCH, KARUNA BUILDINGS M.G.ROAD, ERNAKULAM.** **4. SRI.SAVIO, S/O.JIMMY ANTONY CHOOLACKAL HOUSE, FATHIMA CHURCH ROAD, ELAMKULAM, KOCHI -20** **R1 BY ADVS.SRI.REMANAN, SRI.ALEX N.MATHEW (KOLLAM), SRI.JAMES JOSE. R2 & R3 BY ADV. SRI.E.K.NANDAKUMAR R2 BY ADV. SRI.CHACKO GEORGE, SC R4 BY SRI.P.GEORGE WILLIAM, SMT.REKHA NAIR.** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.P.1173/2009 in W.A.105/2009 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27[th] day of September, 2010. Order Thottathil B.Radhakrishnan, J. - 1.This review petition arises in a very narrow sphere. 2.The first respondent herein filed a writ petition as WP(C).29621/2006 challenging certain proceedings purportedly initiated under the SARFAESI Act. A plea of fraud was also attempted to be raised. That writ petition filed in 2006 was decided by judgment dated 16.10.2008 elaborately considering very many contentions and also expressing that some of the issues cannot be answered in writ jurisdiction. After elaborate consideration, that writ petition was dismissed, however directing that the said judgment would not stand in the way of the writ petitioner seeking reliefs through the civil court. We may RP1173/09 -: 2 :- at once notice that in spite of our earnest attempt, nothing is pointed out from the pleadings in that writ petition that it was filed since the DRT, Ernakulam did not then have a presiding officer and there were no regular sittings for that Tribunal. 3.W.A.105/2009 was filed by the writ petitioner on 29[th] November, 2008 and after rectification of defects, it was listed for consideration for admission on 14.1.2009. On that day, the Bench issued the judgment sought to be reviewed allowing the writ petitioner to file an appeal against the measure under the SARFAESI Act to the DRT within three weeks from that date and ordering the Tribunal to dispose of the matter on merits after hearing the concerned parties. It was also stated that the writ appeal was being disposed of without expressing any opinion regarding the merits of the matter to enable the writ petitioner to avail the opportunity to have the alternate remedy of an appeal. The Tribunal RP1173/09 -: 3 :- was directed to dispose of the matter untrammelled by the observations in the judgment impugned in the writ appeal. It was further directed that if the appeal is filed before the Tribunal within three weeks, status quo should continue for a further period of two months from which time the writ petitioner should get appropriate reliefs from the Tribunal. 4.The crux of the review petition in hand is that the judgment sought to be reviewed was issued on the erroneous premise that “it is the case of the petitioner that she was constrained to approach this court as there was no presiding officer in the Debt Recovery Tribunal at Cochin for long time.” It is, pithily, pointed out that the auction forming the foundation of the lis in the High Court was held on 19.9.2006 and the writ petition was filed only on 7.11.2006 while there were sittings of the DRT till 20.11.2006. On this premise, it is pointed out that neither the writ petitioner nor the respondents, namely, the bank RP1173/09 -: 4 :- and the auction purchaser had any case before the Division Bench that the writ petitioner was constrained to approach this Court on account of the absence of a presiding officer for the DRT. 5.Though initially, allegations were sought to be made regarding the submissions that could have been made before the Bench, by now, it is clear to us that nobody owns up any submission having been made before the Bench that the writ petition was filed because of want of sittings in the Tribunal. There is no pleading also on record, right from the writ petition down to the review petition, that the writ petitioner had a case that she moved this Court for want of sittings of the DRT. In fact, a perusal of the writ petition shows that the SARFAESI Act proceedings were challenged on jurisdictional issues and different other matters. 6.We would recall that Mardia Chemicals and others. v. Union of India and others, (2004) 4 SCC 311 RP1173/09 -: 5 :- was decided on 4[th] August, 2004 even by giving time to the parties who were then litigating before the different High Courts to move the DRTs. But the case in hand and the cause of action in relation to this matter arose some time only in 2006 by which time it was crystal clear that jurisdiction to challenge the SARFAESI Act matters lay before the DRTs. 7.With the aforesaid, we are inclined to take the view that the Bench had erroneously proceeded on the basis, that too, on the first day when the matter was listed for admission, that the case of the writ petitioner was that she was constrained to approach the writ court as there was no presiding officer in the DRT. Essentially, we cannot but assume that it was on that basis that the Bench proceeded to relegate the writ petitioner to the DRT. We clarify that we do not go into the question whether the Bench was justified in directing the Tribunal to consider an appeal which, it is submitted, would have been RP1173/09 -: 6 :- otherwise time barred. 8.Since we find that the directions issued by the Division Bench in W.A.105/2009 on 14.1.2009 were essentially on the basis of the aforesaid premise, which was just not there, we are inclined to take the view that the judgment sought to be reviewed is vitiated by error apparent on the face of the record of the judgment. The same is, therefore, liable to be reviewed and vacated. In the result, the judgment dated 14[th] January, 2009 is reviewed and would stand recalled. The writ appeal would be listed for admission at the earliest. The review petition is allowed accordingly. No costs. Thottathil B.Radhakrishnan, Judge. Sha/2809 P.Bhavadasan, Judge.