OP (DRT) No.212 of 2023

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 ``` ## `OP (DRT) NO. 212 OF 2023` ``` ARISING FROM THE ORDER IN IA NO.1352/2023 IN SA NO.20/2020 DATED 10.05.2023 PENDING BEFORE THE DEBT RECOVERY TRIBUNALI, ERNAKULAM ``` ## `PETITIONER/APPLICANT:` ``` 1SAKEER HUSSAIN, AGED 46 YEARS S/O. LATE ALUNGAL HAMZA, ALUNGAL HOUSE, KARUVARAKUND P.O., MALAPPURAM DISTRICT - 676 523. BY ADVS. N.SASI RASMI NAIR T. JITHENDRAN S. ``` ## `RESPONDENTS/DEFDENDANT:` ``` 1THE AUTHORIZED OFFICER UNDER SARFAESI ACT, SOUTH INDIAN BANK, REGIONAL OFFICE, KOZHIKODE, 1ST FLOOR, HAPPAY TOWERS, VAKKOM MOHAMMED BASHEER ROAD, MANANCHIRA P.O., KOZHIKODE 1. 2THE DEBT RECOVERY TRIBUNAL NO. I ERNAKULAM, REPRESENTED BY ITS REGISTRAR, 5TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, ERNAKULAM 682036 BY ADVS. SUNIL SHANKER S.EASWARAN ``` ``` THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON ``` ``` 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP (DRT) No.212 of 2023 ``` ``` 2 ``` ## C.S.DIAS, J. ``` ------------------------- ``` O.P.(DRT.) No.212 of 2023 `-------------------------` Dated this the 19[th] day of July, 2023 ## JUDGMENT The original petition is filed assailing the orders passed in I.A. No.428/2020 (Ext.P10) and I.A. No.1352/2023 (Exts.P11) in S.A. No.20/2020 by the Debt Recovery Tribunal-I, `-` Ernakulam – the second respondent (in short, ‘Tribunal’). 2. The brief relevant facts leading to Exts.P10 and P11 orders are: 2.1 The petitioner had availed a CCCL loan, a housing loan and KCC loan from the first respondent bank. His wife was the guarantor. The petitioner and his wife had mortgaged four items of property in favour of the first ``` OP (DRT) No.212 of 2023 ``` ``` 3 ``` respondent. The petitioner and the first were a respondent maintaining good relationship. 2.2 Suddenly, the first respondent issued a demand notice and proceeded against the secured assets, including the agricultural properties. Although the first respondent put up two items of properties for sale, there were no bidders. 2.3 Later, the first respondent filed C.M.P. No.2791/2018 (Ext.P1) before the Chief Judicial Magistrate Court, Manjeri, to take possession of the secured assets. 2.4 The petitioner also filed an application before the above Court, to sell two items of properties and release the residential building to him. But, the learned Magistrate dismissed the application. ``` 4 ``` ``` OP (DRT) No.212 of 2023 ``` 2.5 An Advocate Commissioner then issued Ext.P2 notice. The petitioner filed S.A. No.20/2020 (Ext.P3) before the Tribunal. Along with Ext.P3 application, the petitioner had filed I.A. No.87/2020 (Ext.P4), to stay the recovery proceedings. The Tribunal had allowed the application and had passed an order of stay. 2.6 Meanwhile, the petitioner filed I.A. No.428/2020 (Ext.P5) to close the housing loan and release the title deeds of the said property. The application was opposed by the first respondent through Ext.P6 counter affidavit. 2.7 After the Covid-19 lock down, the first respondent sold one item of property in public auction, which was challenged by the petitioner by way of amendment of Ext.P3 application. 2.8 Immediately thereafter, on 23.03.2023, an Advocate Commissioner issued Ext.P7 ``` OP (DRT) No.212 of 2023 ``` ``` 5 ``` notice, which was also challenged by filing Ext.P8 application, to further amend Ext.P3 application. With the said application, the petitioner also filed I.A. No.1352/2023 (Ext.P9), to stay further proceedings pursuant to Ext.P7 notice. 2.9. The Tribunal consolidated and heard Exts.P5 and P9 applications and, by Exts.P10 and P11 orders, dismissed both the applications. 2.10 Exts.P10 and P11 orders are patently erroneous and wrong. Hence, the original petition. 3. The first has filed a respondent counter affidavit refuting the allegations in the original petition and contending that the petitioner has suppressed the material facts in the original petition. The first respondent’s ``` OP (DRT) No.212 of 2023 ``` ``` 6 ``` stand is that the petitioner had filed Ext.P3 [Ext.R1(a)] as early as on 14.01.2020. A perusal of the relief portion of Ext.P3 shows that the proceedings before the learned Magistrate are not under challenge. Although the Tribunal had initially directed the first respondent to defer the recovery proceedings, the interim order was not extended beyond 22.02.2020. When the case was posted on 03.03.2020, the first respondent had filed Ext.R1(e) counter affidavit to Ext.P5 application. Then, the petitioner had moved I.A. No.671/2023, seeking leave to amend Ext.P3 application and also I.A. No.672/2023, to stay the recovery proceedings. The Tribunal had directed the petitioner to implead the auction purchaser of the one item of property and adjourned the application. It was thereafter that the Advocate Commissioner ``` OP (DRT) No.212 of 2023 ``` ``` 7 ``` issued Ext.P7 notice to take possession of the secured assets. Immediately, the petitioner again sought leave to amend Ext.P3 application and stay further recovery proceedings, which were both opposed by the first respondent. The Tribunal, on appreciation of Ext.P9 application and Ext.R1(h) counter affidavit, has rightly concluded that the petitioner has not made out a case to interfere with the recovery proceedings. The petitioner’s application to close the loan account, by remitting an amount of Rs.7,71,651/- and release 15 cents of land with the residential building, has been rejected by the bank. Thereafter, the petitioner had approached the Regional Office of the first respondent to avail the One Time Settlement (OTS) Scheme. It was orally communicated to the petitioner, that he would pay Rs.45/- lakh on ``` OP (DRT) No.212 of 2023 ``` ``` 8 ``` or before 31.07.2023 or Rs.46/- lakh on or before 31.08.2023, but has to remit Rs.10/- lakh on or before 30.06.2023 to consider the proposal. The petitioner has not deposited the initial amount. There is no error or illegality in Exts.P10 and P11 orders passed by the Tribunal warranting interference by this Court under Article 227 of the Constitution of India. The original petition is meritless and is hence, liable to be dismissed. 4. Heard Sri.N.Sasi, the learned Counsel appearing for the petitioner and Sri.S.Easwaran, the learned Counsel appearing for the first respondent. Notice to the second respondent is dispensed with. 5. The point is whether there is any illegality in Exts.P10 and P11 orders. 6. The sheet anchor of the petitioner in ``` 9 ``` ``` OP (DRT) No.212 of 2023 ``` Exts.P5 and P9 applications was to permit him to remit the balance amount towards the housing loan account and to stay further proceedings pursuant to notice issued by the Advocate Commissioner, respectively. 7. The Tribunal after adverting to Exts.P5 application and P6 counter affidavit, by the impugned Ext.P10 order held that it was upto the petitioner to accept the offer made by the first a respondent upon making proper proposal. 8. It is discernible from the counter affidavit filed by the first respondent, that the proposal submitted by the petitioner to avail the OTS Scheme was considered by the first respondent by offering the petitioner to deposit Rs.45/46 lakh on or before 31.07.2023/31.08.2023 respectively, and to remit an initial amount of ``` OP (DRT) No.212 of 2023 ``` ``` 10 ``` Rs.10/- lakh on or before 30.06.2023, to process the proposal. 9. Indisputably, the petitioner has not deposited the initial amount. It is well settled that it is not for this Court to sit in judgment over the decision taken by the first respondent in deciding the proposal submitted by the petitioner to avail the OTS facility, as laid down by the Hon'ble Supreme Court in State Bank of India vs. Aravindra Electronics Private Ltd. [2022 KHC 7165] . Thus, I do not find any error in Ext.P10 order passed by the Tribunal. 10. Now, coming to Ext.P11 order, rejecting the petitioner’s application to stay the recovery proceedings. 11. The averments in the affidavit in support of Ext.P9 application reads as follows: “2. The applicant availed a CCCL loan of Rs 50,00,000/-, Housing loan of 10,00,000/- ``` OP (DRT) No.212 of 2023 ``` ``` 11 ``` and KCC loan of Rs. 3,00,000/- from the defendant Bank. The applicant is the borrower of the loan and his wife Jasbeerath is guarantor cum mortgagor. For availing the loan applicant and his wife mortgaged 4 items of the properties an extent of 0.22 Acres of land under Re.Sy.No.187/3 of Thuvvur Village, Nilambur Taluk, Malappuram Distict, 0.37 Acres of land under Re.Sy.No.369 of Thuvvur Village, Nilambur Taluk, Malappuram District, 0.30 Acres of land under Re.Sy. No.213/1 of Panikkad Village, Ernad Taluk, Malappuram District and 0.15 Acres of land under Re Sy No.371/3 of Thuvvur Village, Nilambur Taluk, Malappuram District with residential building. 15 Ares 10 Sq. Mts with residential building, comprised in Re. Sy Nos 180/2 and 180/5 in Koovappally Village in Kanjirappally Taluk, Kottayam District. Now the advocate commissioner issued Annexure A8 notice stating that the property will be take on 24.04.2023 this is illegal. 3. Immediately petitioner approached the respondent bank to convince them the real facts but the officials of the respondents threatened me that they are going to sell the property at the earliest. If the respondent is ``` OP (DRT) No.212 of 2023 ``` ``` 12 ``` allowed to proceed with their illegal acts I will be put to irreparable loss and hardship. The accompanying application for the said relief may kindly be allowed.” ## 12. The first respondent resisted the above application through Ext.R1(h) counter affidavit, inter alia, contending as follows: “5. It is pertinent to note that the interim relief sought for to stay of the notice issued by the Advocate Commissioner. The present notice cannot be subjected to challenge in the SA since the notice issued by the Advocate Commissioner is a measure under Section 14. Still further the measure under Section 14 was initiated during 2018 by filing CMP No 2791 of 2018. Hence the challenge to the said proceedings by way of amendment is not maintainable. In short there is no cause of action to move the Tribunal now. Hence the amendment petition is not maintainable and hence liable to be dismissed. 6. It is further submitted that the petitioner has raised a challenge in these Petition is specifically to Annexure A8 notice ``` OP (DRT) No.212 of 2023 ``` ``` 13 ``` issued by Advocate Commissioner under Section 14 of the securitisation Act. It is submitted that notice issued by the Advocate Commissioner pursuant to an order passed by Chief Judicial Magistrate under Section 14 of the Securitisation Act cannot be called into question under Section 17 application without challenging the measures under Section 14. Admittedly the time limit to challenge the same is already over. This being the position, the challenge to AnnexureA-8 is liable to be rejected and the application for stay is liable to be dismissed. Hence the applicant is not entitled to seek for stay of further proceedings pursuant to Annexure A8 Notice.” 13. The Tribunal, after adverting to the rival pleadings, passed the impugned order. 14. It is to be remembered that the Tribunal had at the initial stage of Ext.P3 application passed an interim order restraining the first respondent from proceeding with the recovery proceedings against the secured assets. But, ``` OP (DRT) No.212 of 2023 ``` ``` 14 ``` the order was not extended after 22.02.2020. The petitioner also did not have any grievance and the said order has attained finality with no challenge against the same. 15. It is thereafter that the petitioner has ventured to file Ext.P9 application, seeking for an identical relief. The Tribunal finding that there are no convincing material on record to establish that the respondent has failed to comply with the mandate under Section 14(1) of the Act, has rejected the application by the impugned Ext.P11 order. 16. A bare reading of Ext.P9 application would substantiate that the petitioner has not pleaded and established the trinity parameters or any of the alleged subsequent events, which warrants the further stay of recovery proceedings, notwithstanding the Tribunal ``` OP (DRT) No.212 of 2023 ``` ``` 15 ``` refusing to extend the earlier interim order. The petitioner failing to establish the trinity parameters cannot aspire to get the recovery proceedings. Moreover, Ext.P11 order is appealable under Section 18 of the Act. 17. The Hon’ble Supreme Court in South Indian Bank Ltd vs. Naveen Mathew Philip (2023 LiveLaw (SC) 320) , after adverting to a myriad of earlier judicial pronouncements rendered under the Act, has categorically declared that High Courts shall not, unless in extra ordinary circumstances, interfere with proceedings initiated under the Act, in writ proceedings under Article 226 of the Constitution of India. 18. On an overall appreciation of the pleadings and materials on record, I do not find any error in Ext.P11 order, especially for the ``` 16 ``` ``` OP (DRT) No.212 of 2023 ``` lack of any materials on record or specific averments in Ext.P9 application justifying the petitioner for a second interim relief in Ext.P3 Application. There are no grounds made out to inspire this Court to exercise its supervisory power under Article 227 of the Constitution of India. The original petition is meritless and is hence, consequentially dismissed. Sd/- C. S. DIAS JUDGE SKP/19-07 ``` OP (DRT) No.212 of 2023 ``` ``` 17 ``` ## `APPENDIX OF OP (DRT) 212/2023` |`PETITIONER’S EXHIBITS:`|| |---|---| |`EXHIBITP1`|`TRUE COPY OF THE CMP NO. 2791/2018 DATED`| ||`23.8.2018 BEFORE THE CHIEF JUDICIAL MAGISTRATE`| ||`COURT MANJERI`| |`EXHIBITP2`|`TRUE COPY OF THE NOTICE DATED 6.1.2020 ISSUED`| ||`BY THE ADVOCATE COMMISSIONER`| |`EXHIBIT P3`|`TRUE COPY OF S. A. NO. 20/2020 DATED 14.1.2020`| ||`WITHOUT ANNEXURES FILED BY THE PETITIONER`| ||`BEFORE THE DEBT RECOVERY TRIBUNAL NO. I,`| ||`ERNAKULAM`| |`EXHIBIT4`|`TRUE COPY OF THE IA NO. 87/2020 IN SA NO.`| ||`20/2020 DATED 14.1.2020`| |`EXHIBIT P5`|`TRUE COPY OF THE IA NO. 428/2020 IN SA`| ||`NO.20/2020`| |`EXHIBIT P6`|`TRUE COPY OF THE COUNTER DATED 10.3.2020 TO`| ||`EXHIBIT P5`| |`EXHIBIT P7`|`TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE`| ||`COMMISSIONER DATED 23.3.2023`| |`EXHIBIT P8`|`TRUE COPY OF THE IA NO. 1350/2023 IN SA 20/20`| ||`WITHOUT ANNEXURES DATED 13.4.2023 BEFORE THE`| ||`2ND RESPONDENT`| |`EXHIBIT P9`|`TRUE COPY OF THE IA NO. 1352/2023 DATED`| ||`13.4.2023 FILED BEFORE THE 2ND RESPONDENT`| |`EXHIBIT P10`|`TRUE COPY OF THE ORDER DATED 28.4.2023 IN IA`| ||`NO. 428/2020 IN SA NO. 20/2020`| |`EXHIBIT P11`|`TRUE COPY OF THE ORDER DATED 10.5.2023 IN IA`| ||`NO. 1352/2023 IN SA NO. 20/2020`| |`RESPONDENT’S EXHIBITS:`|| |`EXHIBIT R1(A)`|`COPY OF SA NO 20 OF 2020 ON THE FILES OF DRT-1`| ||`ERNAKULAM`| |`EXHIBIT R1(C)`|`COPY OF THE EXTRACT OF A DIARY PROCEEDINGS`| ||`DATED 20 -1-2020 IN SA NO 20 OF 2020 ON THE`| ||`FILES OF DRT- 1 ERNAKULAM AS OBTAINED FROM WEB`| ||`SITE OF DRT-1 ERNAKULAM`| |`EXHIBIT R1(D)`|`COPY OF THE EXTRACT OF A DIARY PROCEEDINGS`| ||`DATED 22-2-2020 IN SA NO 20 OF 2020 ON THE`| ||`FILES OF DRT- 1 ERNAKULAM AS OBTAINED FROM WEB`| ||`SITE OF DRT-1 ERNAKULAM`| |`EXHIBIT R1(E)`|`COPY OF IA NO 428 OF 2020 IN SA NO 20 OF 2020`| ||`ON THE FILES OF DRT-1 ERNAKULAM`| |`EXHIBIT R1(F)`|`COPY OF THE IA NO 671 OF 2023 IN SA NO 20 OF`| ||`2020 ON THE FILES DRT-1 ERNAKULAM`| |`EXHIBIT R1(G)`|`COPY OF IA NO 672 OF 2023 IN SA NO 20 OF 2020`| ||`ON THE FILES OF DRT-1 ERNAKULAM`| |`EXHIBIT R1(H)`|`COPY OF THE COUNTER AFFIDAVIT FILED TO IA NO`| ||`1352 OF 2023 IN SA NO 20 OF 2020 ON THE FILES`| ``` OP (DRT) No.212 of 2023 ``` ``` 18 ``` ## `OF DRT-1 ERNAKULAM` ``` EXHIBIT R1(B)COPY OF THE EXTRACT OF A DIARY PROCEEDINGS DATED 17-1-2020 IN SA NO 20 OF 2020 ON THE FILES OF DRT- 1 ERNAKULAM AS OBTAINED FROM WEB SITE OF DRT-1 ERNAKULAM TRUE COPY ``` ``` P.A.TO JUDGE ```