OP (DRT) Nos. 95 of 2023 and 272 of 2023 (Common Judgment)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 ``` ``` OP (DRT) NO. 272 OF 2023 AGAINST THE ORDER/JUDGMENT OA 258/2013 OF DEBT RECOVERY TRIBUNAL, ``` ## **`ERNAKULAM`** ## **`PETITIONER:`** ``` THE FEDERAL BANK LIMITED, AGED 47 YEARS LCRD ERNAKULAM DIVISION , FEDERAL TOWERS , MARINE DRIVE, ERNAKULAM - 682031 REPRESENTED BY ITS VICE PRESIDENT & BRANCH HEAD. BY ADVS. MOHAN JACOB GEORGE P.V.PARVATHY (P-41) REENA THOMAS NIGI GEORGE ``` ## **`RESPONDENTS:`** ``` 1SARGAM BUILDERS PRIVATE LIMITED, 28/ 3858-D SARGAM HOUSE , KOCHI - 682020 TO BE REPRESENTED BY MR. JASIN JOSE PONMATTAM, MAASSERY HOUSE, MOOKKANNOOR P.O., ANGAMALY, ERNAKULAM, COCHIN - 683577 (LIQUIDATOR OF SARGAM BUILDERS). 2V K A RAHIM, S/O KUNJALI NAINA, SARGAM, WATERLAND ROAD, KADAVANTHARA ,KOCHI, PIN - 682020 3RASIA RAHIM, D/O. V. K .A. RAHIM , SARGAM WATERLAND ROAD KADAVANTHARA KOCHI, PIN - 682020 4THE DEBTS RECOVERY TRIBUNAL -1, ERNAKULAM REPRESENTED BY ITS REGISTRAR, KSHB BUILDING, 5TH FLOOR , PANAMPILLY NAGAR, ERNAKULAM, PIN - 682036 ``` ``` THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH OP (DRT).95/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 27[TH] DAY OF JULY 2023 / 5TH SRAVANA, 1945 OP (DRT) NO. 95 OF 2023 AGAINST THE ORDER/JUDGMENT OA 258/2013 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM ``` ## **`PETITIONER:`** ``` V.K.ABDUL RAHIM, AGED 76 YEARS S/O.V.M.KUNJALI NAINA, SHARE HOLDER AND SUSPENDED MANAGING DIRECTOR OF M/S. SARGAM BUILDERS PVT LTD, 28/3858-D, SARGAM HOUSE, KOCHI - 20 AND RESIDING AT SARGAM, WATERLAND ROAD, ELAMKULAM, KOCHI- 682020. ``` ``` BY ADVS. P.LAKSHMI BABU KARUKAPADATH M.A.VAHEEDA BABU P.U.VINOD KUMAR ARYA RAGHUNATH VAISAKHI V. T.M.MUHAMMED MUSTHAQ AJWIN P LALSON KARUKAPADATH WAZIM BABU AYSHA E.M. ``` ## **`RESPONDENTS:`** ``` 1FEDERAL BANK, REGISTERED OFFICE-FEDERAL TOWERS, BANK JUNCTION ALUVA, ERNAKULAM DISTRICT AND BRANCH OFFICE AT LCRD ``` ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 3 ``` ``` ERNAKULAM DIVISION, GROUND FLOOR, FEDERAL TOWERS, MARINE DRIVE, ERNAKULAM, KERALA-682031 REPRESENTED BY ITS VICE PRESIDENT. ``` ``` 2MR. JASIN JOSE PONMATTAM, MAASSERY HOUSE, MOOKKANNOOR P.O., ANGAMALY, ERNAKULAM, COCHIN -683577 (THE LIQUIDATOR OF SARGAM BUILDERS PVT. LTD). ``` ``` 3THE DEBT RECOVERY TRIBUNAL-I, ERNAKULAM, 5TH FLOOR, KERALA STATE HOUSING BOARD BUILDING, PANAMBILLY NAGAR, ERNAKULAM- 682036 ``` ``` BY ADVS. MOHAN JACOB GEORGE G.HARIKUMAR (GOPINATHAN NAIR) AKHIL SURESH ``` ``` THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 27.07.2023, ALONG WITH OP (DRT).272/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 4 ``` ## **Dated this the 27[th] day of July, 2023** ## **COMMON JUDGMENT** As the parties are the same and the matter pertains to consideration and disposal of O.A. No.258/2013 and the counter claim on the file of the Debt Recovery Tribunal -I, Ernakulam, the original petitions are disposed of by this common judgment. 2. OP(DRT) No.95/2023 is filed by the defendant in O.A. No.258/2013 for an expeditious consideration of O.A. No.258/2013 and the counter claim pending in it. O.P. (DRT) No.272/2023 is filed by the applicant in O.A. No.258/2013, to direct the Tribunal to consider and dispose of I.A Nos.2310/2015 and 2311/2015 in O.A No.258/2013, expeditiously, and in precedence to O.A. No.258/2013 and the counter claim. ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 5 ``` 3. The common case of the both parties is that, the Applicant - Bank has filed O.A. No.258/2013 against the defendants for recovery of money. The defendants have raised a counter claim in the O.A. The bank has filed I.A.No.2311/2015 in O.A. No.258/2013, to strike off the counter claim and I.A.No.2310/2015, to direct the Tribunal to review the order dated 1.9.2015, directing the Bank to file a written statement to the counter claim. The Bank’s contention is that, the counter claim is not maintainable in O.A.No.258/2013, in view of the law laid down by the Honourable Supreme Court in **Nahar Industrial Enterprises Limited v Hong Kong and Shanghai Banking Corporation** [(2009) 8 SCC 646]. 4. The defendants’ contention is that, as there is no such declaration of law by the Honourable Supreme Court, the counter claim is maintainable and I.A. ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 6 ``` Nos.2310/2015 and 2311/2015 are highly belated. 5. Going by the rival pleadings and after hearing the learned counsel appearing for the parties, I am of the definite view that a quietus can be given to the original petitions, by directing the Tribunal to decide as to whether a counter claim in O.A. is maintainable or not, and then decide whether the O.A. is to be expeditiously disposed of. Resultantly, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of the original petitions as follows:- (i) The Debt Recovery Tribunal-I, Ernakulam, is directed to consider and dispose of the I.A.Nos.2310/2015 and 2311/2015, in accordance with law and expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of the ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 7 ``` judgment, after affording the parties an opportunity of being heard. (ii) Consequent to the passing of the orders on the above applications, it would be up to the Tribunal to dispose of O.A. No.258/2013, in accordance with law and as expeditiously as possible. **SD/-** **C.S.DIAS, JUDGE** rmm29/7/2023 ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 8 ``` ## **`APPENDIX OF OP (DRT) 95/2023`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 A TRUE COPY OF O.A 258/2013, EXCLUDING THE ANNEXURES, PENDING ON THE FILE OF THE HON'BLE DRT, ERNAKULAM` - `Exhibit P2 A TRUE COPY OF WRITTEN STATEMENT ALONG WITH COUNTER CLAIM, EXCLUDING THE ANNEXURES IN O.A 258/2013 PENDING ON THE FILE OF THE HON'BLE DRT, ERNAKULAM` - `Exhibit P3 A TRUE COPY OF THE JUDGMENT DATED 20/09/2019 IN TIBA/07/KOB/2019 OF THE HON'BLE NCLT` - `ExhibitP4 A TRUE COPY OF THE JUDGMENT DATED 22/09/2022 IN COMPANY APPEAL (AT) (INS) 264 OF 2021 OF THE HON'BLE NCLAT, CHENNAI BENCH` - `ExhibitP5 A TRUE COPY OF THE PROCEEDINGS IN OA NO. 258/2013 ON THE FILE OF THE DEBT RECOVERY TRIBUNAL - I ERNAKULAM` - `ExhibitP6 A TRUE COPY OF THE E-AUCTION SALE NOTICE DATED 27/01/2023 OF THE 2ND RESPONDENT FOR SALE OF THE ENTIRE ASSETS OF THE COMPANY ON 03/03/2023` - `EXHIBIT P7 A TRUE COPY OF THE FORM D SUBMITTED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT` - `EXHIBIT P8 A TRUE COPY OF E-MAIL DATED 07/09/2021 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT INTER ALIA DEMANDING FORM D SUBMITTED BY THE 1ST RESPONDENT` - `EXHIBIT P8 (A) A TRUE COPY OF E-MAIL DATED 06/12/2021 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT INTER ALIA DEMANDING FORM D SUBMITTED BY THE 1ST RESPONDENT` ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 9 ``` - `EXHIBIT P8(B) A TRUE COPY OF E-MAIL DATED 11/01/2022 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT INTER ALIA DEMANDING FORM D SUBMITTED BY THE 1ST RESPONDENT` - `EXHIBIT P8(C) A TRUE COPY OF E-MAIL DATED 10/02/2022 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT INTER ALIA DEMANDING FORM D SUBMITTED BY THE 1ST RESPONDENT` - `EXHIBIT P9 A TRUE COPY OF THE LETTER DATED 22/01/2022 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT THROUGH E-MAIL REQUESTING HIM TO INFORM WHETHER THE 1ST RESPONDENT HAS RELINQUISHED ITS SECURITY INTEREST` - `EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 12/06/2023 IN COMPANY APPEAL (AT)(CH) (INS). NO.12/2023 (ANHEUSER BUSCH INBEV INDIA LIMITED VS. MR. PRADEEP KUMAR SRAVANAM) OF THE HON'BLE NCLAT, CHENNAI` ``` RESPONDENT EXHIBITS ANNEXRE R 2 AA TRUE COPY OF THE ORDER OF THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH IN TIBA 07/KOB/2019 VIDE ORDER DATED 20.09.2019 ``` ``` ANNEXRE R 2 BA TRUE COPY OF THE LIQUIDATION ORDER PASSED HON'BLE NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH I.A NO.129/KOB/2020 IN TIBA/07/KOB/2019 DATED 16.09.2020 ANNEXURE R 2 CA TRUE COPY OF THE ORDER IN MA/207/KOB/2020 DATED 20.09.2021 ``` ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 10 ``` ``` ANNEXURE R 2 DCOPY OF JUDGMENT DATED 22.09.2022 IN COMPANY APPEAL (AT)(CH)(INS)NO.264/2021 ``` - `ANNEXURE R 2 E A TRUE COPY OF THE ORDER DATED 28.11.2022 IN CIVIL APPEAL NO. 35774/2022` - `EXT.R1(A) TRUE COPY OF I.A.NO.2310 OF 2015 IN O.A.NO.258 OF 2013 FILED BEFORE DRT, ERNAKULAM` - `EXT.R1(B) TRUE COPY OF I.A.NO.2311 OF 2015 IN O.A.NO.258 OF 2013 FILED BEFORE DRT, ERNAKULAM` - `EXT.R1( C) COPY OF IA NO.101 OF 2021 IN M.A.NO.207/KOB/2020 IN IA NO.129/KOB/2020 IN TIBA/07/KOB/2019 BEFORE NCLT, COCHIN` - `EXT.R1(D) TRUE COPY OF ORDER DATED 20.09.2021 DISMISSING MA NO.207/KOB/2020 AND IA (IBC) 101/KOB/2021 IN TIBA/07/KOB/2019` - `EXT.R1(E) COPY OF JUDGMENT DATED 22.09.2022 IN COMPANY APPEAL (AT)(CH)(INS)NO.264/2021 OF NCLAT` - `EXT.R1(F) COPY OF COMMON ORDER DATED 28.11.2022 DISMISSING CIVIL APPEAL DIARY NO.35574 OF 2022` ``` EXT.R1(G)COPY OF COMMON ORDER DATED 28.11.2022 IN CIVIL APPEAL NO.8530 OF 2022 ``` ``` OP(DRT) Nos. 95 & 272 OF 2023 ``` ``` 11 ``` ## **`APPENDIX OF OP (DRT) 272/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P-1COPY OF O.A.NO.258 OF 2013 FILED BEFORE DRT-1, ERNAKULAM (WITHOUT EXHIBITS) ``` ``` Exhibit P-2COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN EXT.P-1 OA (WITHOUT EXHIBITS) ALONG WITH THE COPY OF THE COUNTER CLAIM ``` ``` Exhibit P-3COPY OF I.A.NO.2310/2015 FILED IN EXT.P-1 OA ``` ``` Exhibit P-4COPY OF I.A.NO.2311/2015 FILED IN EXT.P-1 OA ```