S. LATHAMBIKA W/O DR. RADHA MOHAN v. THE AUTHORIZED OFFICER (CHIEF MANAGER), STATE BANK OF TRAVANCORE; STRESSED ASSETS RESOLUTION CENTRE, ARPAN TOWERS, KADAPPAKKADA P.O., KOLLAM - 691 008; THE BRANCH MANAGER, STATE BANK OF TRAVANCORE MAIN BRANCH, BISHOP JEROME NAGAR, KOLLAM - 691 001; THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, KERALA STATE HOUSING BOARD BUILDINGS, PANAMPALLY NAGAR, ERNAKULAM - 682 036; THE TAX RECOVERY OFFICER, INCOME TAX DEPARTMENT, NEAR RAILWAY STATION, KOLLAM - 691 001; THE TAHSILDAR TALUK OFFICE, KOTTARAKKARA, KOTTARAKKARA, P.O., KOLLAM - 691 506; THE COMMERCIAL TAX OFFICER KOTTARAKKARA, KOLLAM - 691 506; DR RADHA MOHAN S/O.SUKUMARAN, MANAGING PARTNER, MATHA PHARMA, KAILAS, EZHUKONE P.O., KOLLAM - 691 505

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942 WA.No.2555 OF 2015** **AGAINST THE JUDGMENT IN WPC 33864/2015 DATED 12-11-2015 OF HIGH COURT OF KERALA** ## **APPELLANT:** **S. LATHAMBIKA W/O.DR.RADHA MOHAN, KAILAS, EZHUKONE P O, KOLLAM. BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS:** |**1**|**THE AUTHORIZED OFFICER (CHIEF MANAGER)**| |---|---| ||**STATE BANK OF TRAVANCORE,**| ||**STRESSED ASSETS RESOLUTION CENTRE,**| ||**ARPAN TOWERS, KADAPPAKKADA P O,**| ||**KOLLAM - 691 008.**| |**2**|**THE BRANCH MANAGER**| ||**STATE BANK OF TRAVANCORE MAIN BRANCH,**| ||**BISHOP JEROME NAGAR, KOLLAM - 691 001.**| |**3**|**THE RECOVERY OFFICER**| ||**DEBT RECOVERY TRIBUNAL, 8TH FLOOR,**| ||**KERALA STATE HOUSING BOARD BUILDINGS,**| ||**PANAMPALLY NAGAR, ERNAKULAM - 682 036.**| |**4**|**THE TAX RECOVERY OFFICER**| ||**INCOME TAX DEPARTMENT,**| ||**NEAR RAILWAY STATION, KOLLAM - 691 001.**| **2** ## **W.A.No.2555 of 2015** **5 THE TAHSILDAR TALUK OFFICE, KOTTARAKKARA, KOTTARAKKARA, P O, KOLLAM - 691 506.** - **6 THE COMMERCIAL TAX OFFICER KOTTARAKKARA, KOLLAM - 691 506.** **7 DR RADHA MOHAN S/O.SUKUMARAN, MANAGING PARTNER, MATHA PHARMA, KAILAS, EZHUKONE P O, KOLLAM - 691 505.** **SRI.R.S.KALKURA, SC FOR SBT R3 BY ADV. SMT.O.M.SHALINA, CGC SR.G.P. SRI.SURIN GEORGE IPE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.2555 of 2015** **3** ## **JUDGMENT** Dated this the 19[th] day of May, 2020 ## **S.Manikumar, C.J.** Being aggrieved by the judgment in W.P.(C)No.33864 of 2015 dated 12.11.2015, instant writ appeal is filed. 2. Short facts leading to the appeal are that, when respondent Bank instituted proceedings for sale of the properties covered under Ext.P1, by way of issuance of proclamation of e-Sale in DRC No.3504 e-Sale No.72/2015 (Ext.P8) dated 8.9.2015 and Ext.P9 auction sale notice dated 8.9.2015, the same were challenged by filing W.P. (C)No.33864 of 2015 with the following prayers: (i) To call for the records leading to Ext.P8 from the 3[rd] Respondent and issue a writ of certiorari or any other appropriate writ, order or direction quashing Exts.P8 and P9 proceedings for sale of the properties belongs to the petitioner covered in Ext.P1. (ii) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to proceed with Exts.P8 and P9 sale proceedings of the properties belongs to the petitioner covered in Ext.P1 without settling the First Charge over the dues of Sales Tax, Income Tax and the petitioner's claim under Section 39 of the Transfer of Property Act and Domestic Violence Act. (iii) To declare that Exts.P8 and P9 sale proceedings of the **W.A.No.2555 of 2015** **4** properties belongs to the petitioner covered in Ext.P1 will be subject to the petitioner's claim for charge under Section 39 of the Transfer of Property Act and Domestic Violence Act. (iv) To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to grant sufficient time to permit the petitioner to pay Ext.P6 Lok Adalath Ward amount Rs.50,00,000/- with sufficient time with reasonable interest from the date of first instalment and till the proceedings for sale of the properties belongs to the petitioner covered in Ext.P1 pursuant to Exts.P8 and P9 sale proceedings may be kept in abeyance. 3. After taking note of a Hon'ble Division Bench judgment in W.A.No.1138 of 2015, which followed the ratio declared by the Hon'ble Supreme Court in **P.T. Thomas v. Thomas Job** reported in (2005) 6 SCC 478, a learned single Judge of this court vide judgment dated 12.11.2015, dismissed the writ petition as hereunder: “The petitioner has approached this Court aggrieved by the steps taken by the respondent bank for recovery of defaulted loan amounts. The pleadings in the writ petition would show that the petitioner and the respondent bank had settled the dispute between them before the National Lok Adalath in DRC No.3504 in O.A.No.384/2004 by agreeing to pay Rs.50,00,000/- in full and final settlement of the issue, the first installment of Rs.20,00,000/- to be paid on or before 20.3.2015 and the second installment of Rs.30,00,000/- to be paid on or before 30.4.2015. A copy of the award is also **W.A.No.2555 of 2015** **5** produced in the writ petition as Ext.P6. It is not in dispute that the petitioner did not comply with the terms of Ext.P6 award. Under the said circumstances, and in view of the decision of a Division Bench of this Court in W.A.No.1138/2015, wherein, this Court took the view that a person who had settled the issue before the Lok Adalath was bound to follow the terms and conditions of the settlement and could not maintain a writ petition challenging the consequential action that is taken by the respondents pursuant to the breach of the terms of the award of the Lok Adalath, I am of the view that the present writ petition cannot be maintained by the petitioner. Resultantly, the writ petition fails, and is accordingly dismissed.” ## 4. The said judgment is impugned on the following grounds: A) The learned single Judge ought to have found that the Division Bench of this Hon'ble Court decided the issue in W.A.No.1138 of 2015 following the ratio decided by the Hon'ble Apex Court in **P.T. Thomas v. Thomas Job** reported in (2005) 6 SCC 478. However the Hon'ble Apex Court in the above judgment granted breathing time to the appellant to execute the stipulations in the award, in that view of the matter the appellant may be granted sufficient time to comply with the award after selling a portion of the property and to deposit the amount in terms of the award with interest. B) The learned single Judge ought to have found that Ext.P6 award the liability is Rs.50,00,000/- as on 14.2.2015 whereas within a period of 10 months on 8.9.2015 the amount claimed **W.A.No.2555 of 2015** **6** in Exts.P8 and P9 is Rs.1,28,08,489.51/- as on 27.12.2012 as per the recovery certificate, which is more the 3 times of the amount in Ext.P6. C) The learned single Judge ought to have found that in W.A.No.1138 of 2015 the Division Bench of this Hon'ble Court considered the issue in respect of a proceedings under Section 14 of the SARFAESI Act, whereas in Exts.P8 and P9 proceedings are execution proceedings based on a recovery certificate issued by the Debt Recovery Tribunal, it is on different footing. 5. Though Mr.B.Mohanlal, learned counsel for the appellant made submissions on the above grounds, inviting the attention of this court to the Hon'ble Division Bench judgment in W.A.No.1138 of 2015 dated 22.6.2015, Mr.R.S.Kalkura, learned standing counsel for the respondent Bank submitted that the judgment impugned in the instant appeal, has been passed by following the above said Division Bench judgment, and that there is no material irregularity warranting interference. 6. Judgment in W.A.No.1138 of 2015 dated 22.6.2015, has been passed following the dictum laid down by the Hon'ble Supreme Court in **P.T. Thomas** 's case (supra). The operative portion of the Division Bench judgment reads thus: “23. The High Court of Andhra Pradesh held that, in Board of Trustees of the Port of Visakhapatnam v. Presiding Officer, Permanent, Lok Adalat-cum-Secy., District Legal **W.A.No.2555 of 2015** **7** Services Authority the award is enforceable as a decree and it is final. On all fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are not again driven to further litigation or any dispute. Though the award of a Lok Adalat is not a result of a contest on merits just as a regular suit by a court in a regular trial is, however, it is as equal and on a par with a decree on compromise and will have the same binding effect and be conclusive. Just as the decree passed on compromise cannot be challenged in a regular appeal, the award of the Lok Adalat, being akin to the same, cannot be challenged by any of the regular remedies available under law, including by invoking Article 226 of the Constitution and challenging the correctness of the award, on any ground. Judicial review cannot be invoked in such awards, especially on the grounds as were raised in the revision petition.” 7. Heard learned counsel for the parties and perused the material available on record. 8. The contentions raised by the learned counsel for the appellant that unless and until, the first charge over the dues of Sales Tax and Income Tax and the appellant's claim under Section 39 of the Transfer of Property Act and Domestic Violence Act and other reliefs, is discharged, Bank has no right to proceed with auction. Claim for recovery towards the first charge over the dues of Sales Tax, Income Tax, are purely inter **W.A.No.2555 of 2015** **8** se between the State/Income Tax Department and the Bank. The appellant cannot claim any right on behalf of the State Government or Income Tax Department for settlement of the first charge. Therefore, we are of the view that it is not open to the appellant, to contend that unless and until the first charge for the Sales Tax/Income Tax is settled, the Bank has no right to proceed with the sale of the property mortgaged. 9. In respect of the claim under Section 39 of the Transfer of Property Act, Domestic Violence Act and other reliefs, appellant has to succeed and take appropriate steps. That apart, Section 34 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, provides for an over-riding effect. For brevity, Section 34 of the said Act is reproduced: “ **34. Act to have over-riding effect** .- (1) Save as provided under sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State Financial Corporations Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984), the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) and the **W.A.No.2555 of 2015** **9** Small Industries Development Bank of India Act, 1989 (39 of 1989)].” In the light of the statutory provisions, the grounds raised by the appellant challenging Exts.P8 and P9 stated supra are untenable. In the light of the above discussion, we are of the view that the appellant has not made out a case for admission. Accordingly the writ appeal is dismissed. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **/true copy/** **P.A. To Judge**