Sajeeba Salim v. The Federal Bank Ltd., Pathanamtthtta Branch and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman
Judgment Date: 2022-05-30
Court Decision / Holding: Writ petition dismissed. however, three weeks’ time granted to comply with mandatory provisions under Section 30A; failing which Ext.P13 order will be treated as conclusive.
Final Disposition: Writ petition dismissed; time granted to comply with Section 30A (three weeks)

Parties to the Case

Appellants / Petitioners

Sajeeba Salim

Respondents

The Federal Bank Ltd., Pathanamtthtta Branch
ShanmughAn Chettiyar
Rajesh Babu
AjEEB M Sahib
JEEBA Meera Sahib
NAJEEB M Sahib
The Recovery Officer, Debt Recovery Tribunal, Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• P. Haridas
• P.C. Shijin Shijimol
• M. Mathew
• Biju Hariharan
• Rishikesh Haridas

Counsels for Respondents

• Mohan Jacob
• George Paul Jacob
• P. Parvathy
• Reena Thomas
• Nigi George
• Sheru Joseph
• Mathew Thomas

Case Synopsis & Summary

This writ petition filed by Sajeeba Salim challenges the sale conducted on 29.11.2010 under a recovery certificate in OA 15/2007 and the pre-deposit requirement under Section 30A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The petitioner, the legal representative of the deceased debtor, sought to set aside the sale and to challenge the mandatory pre-deposit while arguing that she is not a borrower and thus not liable to deposit fifty percent of the debt. The Debts Recovery Tribunal-II, Ernakulam, rejected the applications for setting aside the sale (Ext. P9) and for condonation of delay (Ext. P5) and also refused to register Ext. P10 appeal for non-deposit, citing Section 30A. In Ext. P10, the Registry noted defects and the Tribunal’s subsequent Ext. P14 order held that as the loan was taken by the petitioner’s mother, the petitioner stepped into the shoes of her mother and cannot claim independent rights to challenge the property or exempt herself from the deposit requirement. The petitioner relied on the Kerala High Court decision in Dhileep and others v. Debts Recovery Tribunal (2008) 1 KHC 482 to argue non-liability to pre-deposit, but the court distinguished that decision. The Court ultimately dismissed the petition, though granted three weeks’ time to comply with Section 30A, failing which Ext. P13 would be treated as conclusive.

Provisions of Law Cited

Section 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993Section 30A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that she is not a borrower and thus not liable to deposit 50% of the debt under Section 30A. Since she is the legal representative of the deceased debtor, she claims rights over the property but no independent right to claim exemption from the mandatory pre-deposit. She argues there is no ‘amount’ appealed against in Ext. P10 and relies on Dhileep to contend non-liability to pre-deposit for a person who is not a borrower.

Contentions of Respondents

The respondent bank argues that the writ petition is not maintainable due to an available alternative remedy under Section 20 of the Act. It contends that a legal representative cannot evade the mandatory pre-deposit and that the Tribunal’s orders are valid. It asserts that the Dhileep decision does not apply because of the express deposit requirement under Section 30A for filing an appeal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Dhileep and others v. Debts Recovery Tribunal, Ernakulam & others	2008 (1) KHC 482	Distinguished	Court distinguishes the Dhileep decision, noting that Section 30A expressly requires deposit of the debt amount for filing an appeal, thus Dhileep does not apply to the present facts.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** ## **WP(C) NO. 15990 OF 2022** ## **PETITIONER/S:** **SAJEEBA SALIM,AGED 54 YEARS D/O. K. MEERA SAHIB, PRESENTLY RESIDING AT AYUSH AYURVEDA HEALTHCARE PVT. LTD., BLOCK 927, YISHUN CENTRAL 1, #01-171, SINGAPORE (FIN G3380234Q), FROM "KALLUMPURAYIDOM", PETTAH MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT 689 653, KERALA, REPRESENTED BY HER POWER OF ATTORNEY, MUHAMMED NASEEF BIN SALIM, AGED 29, S/O. K.M. ABDUL SALIM, "KALLUMPURAYIDOM", PETTAH MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT 689 653.** **BY ADVS. P.HARIDAS P.C.SHIJIN SHIJIMOL M.MATHEW BIJU HARIHARAN RISHIKESH HARIDAS** ## **RESPONDENT/S:** **1 THE FEDERAL BANK LTD., PATHANAMTHITTA BRANCH, REPRESENTED BY ITS MANAGER, FEDERAL BANK LTD., PATHANAMTHITTA BRANCH, P.B. NO. 14, COLLEGE ROAD, PATHANAMTHITTA, 689 645.** - **2 MR. SHANMUGHAN CHETTIYAR, AGED 68 YEARS S/O. VAIRABHAN, RESIDING AT SRIMANGALAM, ANANDAPALLY P.O, VIA ADOOR, PATHANAMTHITTA-691 525.** - **3 MR. RAJESH BABU, AGED 44 YEARS S/O. MR. BABU, RESIDING AT KIZHAKKAYIL, CHIRAKADAVU P.O, KANJIRAPALLY, KOTTAYAM 686 506.** - **4 AJEEB M SAHIB, AGED 49 YEARS W/O. ABDUL KHADER, RESIDING AT AARIPPILA HOUSE, PETTAH, PATHANAMTHITTA, PIN 689 645.** - **5 JEEBA MEERA SAHIB,AGED 47 YEARS D/O. LATE MEERA SAHIB, KALLUMPURAYIDOM", PETTAH MURI,** **WP(C) NO. 15990 OF 2022 ..2..** **PATHANAMTHITTA VILLAGE, KOZHENCHERY TALUK, PATHANMATHITTA DISTRICT, 689 653.** - **6 NAJEEB M SAHIB, AGED 45 YEARS S/O. LATE MEERA SAHIB, "KALLUMPURAYIDOM", PETTAH MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT 689 653.** **7 THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, KERALA AT ERNAKULAM, OFFICER OF THE DEBT RECOVERY OFFICER, DRT KERALA, 8TH FLOOR, K.S.H.B BUILDING, PANAMPILLY NAGAR, ERNAKULAM, PIN 682 036.** **BY ADVS. MOHAN JACOB GEORGE PAUL JACOB (P) P.V.PARVATHY (P-41) REENA THOMAS NIGI GEORGE SHERU JOSEPH(K/1522/2002) MATHEW THOMAS(K/253/2022)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 15990 OF 2022 ..3..** ## **JUDGMENT** The petitioner filed Ext.P4 interlocutory application before the Debts Recovery Tribunal-II, Ernakulam for setting aside sale conducted on 29.11.2010 pursuant to the recovery certificate issued by the Debts Recovery Tribunal in O.A. No 15/2007. Ext.P5 application for condoning delay was also filed under Section 19 (25) of the Recovery of Debts Due to Banks and Financial Institutions Act. The Recovery Officer, Debts Recovery Tribunal-II, Ernakulam by Ext.P9 dismissed both the applications. Challenging Ext.P9, the petitioner filed Ext.P10 appeal before the Debts Recovery Tribunal-II, Ernakulam. Contenting that the appeal preferred by the petitioner is not taken up for consideration by the DRT since there was no Presiding Officer appointed, the petitioner approached this Court **WP(C) NO. 15990 OF 2022 ..4..** by filing W.P. (c) No.3853/2022 and this Court passed an interim order directing not to dispossess the petitioner from the property. After the DRT-II commenced functioning, this Court by Ext.P11 Judgment disposed of the writ petition giving liberty to the petitioner to move the DRT–II, Ernakulam, appropriately for the reliefs which the petitioner has prayed for in the said writ petition. To enable the petitioner to approach the DRT–II, Ernakulam as above, this Court extended the interim order for a period of one month and further directed the DRT to dispose of the appeal within 3 months. By Ext.P12 Judgment the Division Bench of this Court modified Ext.P11 Judgment by extending the interim order till the disposal of Ext.P10 appeal. 2. In Ext.P10 appeal, the Registry of the Tribunal noted certain defects, particularly that the petitioner had not deposited with the Tribunal fifty **WP(C) NO. 15990 OF 2022 ..5..** percent of the amount of debt due as determined by the Tribunal. The petitioner contended that the petitioner being not a borrower, the petitioner is not required to deposit fifty percent of the amount of debt due as provided under Section 30A of the Recovery of Debts and Bankruptcy Act, 1993 (the 'Act' for short). The Registry by Ext.P13 order declined to register the appeal as the petitioner did not deposit fifty percent of dues as provided under section 30A of the Act. Against Ext.P13 order of the Registry, the petitioner preferred an appeal before the Tribunal and the DRT-II by Ext.P14 Order rejected the appeal and the petitioner was granted one week time to comply with the provisions of Section 30 A of the Act, failing which it was directed that Ext.P13 order will be treated as conclusive. In Ext.P14, the DRT found that since the loan was taken by the mother of the petitioner, the petitioner stepped into the shoes of her mother in **WP(C) NO. 15990 OF 2022 ..6..** claiming right over the properties and therefore the petitioner cannot have independent right to raise claim over the property in question and as such she cannot claim any exemption to comply with the mandatory pre-deposit of amount contemplated under section 30A of the Act. It is challenging Ext.P14 order of DRT-II that the petitioner has preferred this writ petition. 3. According to the petitioner, the petitioner is not a person from whom any amount of debt is due to the bank, and therefore the petitioner is not liable to remit the fifty percent of the amount of debt due. It is further contended that there is no ' amount ' appealed against in Ext.P10 appeal and in the light of the decision of this Court in **Dhileep and others** _**v**_ **. Debts Recovery Tribunal, Ernakulam & others reported in 2008 (1) KHC 482,** the petitioner is not liable to make the pre-deposit. **WP(C) NO. 15990 OF 2022 ..7..** 4. Sri. Mohan Jacob George, the learned Counsel appearing for the 1[st] respondent bank submits that in view of the alternate remedy available to the petitioner under Section 20 of the Act, the writ petition is not maintainable. 5. Ext.P10 appeal is preferred by the petitioner against Ext.P9 order of the Recovery Officer, DRT-II, Ernakulam, rejecting the application for setting aside sale conducted on 29.11.2010 pursuant to the recovery certificate issued by the DRT in O.A.No.15/2007. The application was preferred by the petitioner as the legal representative of the deceased debtor. As rightly held by the Tribunal in Ext.P14 order, as a legal representative of the debtor claiming right over the properties, the petitioner cannot claim independent right over the properties. The petitioner cannot, therefore, claim any exemption to comply with the requirement of pre-deposit as mandated under **WP(C) NO. 15990 OF 2022 ..8..** section 30 A of the Act. The decision in **Dhileep** (supra) will not apply in view of the express provision under Section 30 A of the Act providing for a deposit of amount of debt due for filing appeal. Accordingly, the writ petition fails and is dismissed. However, in the interest of justice, the petitioner is given three weeks’ time from today to comply with the mandatory provisions under Section 30A of the Act, failing which, Ext.P13 order shall be treated as conclusive. No order as to costs. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB ## **WP(C) NO. 15990 OF 2022 ..9..** ## **APPENDIX OF WP(C) 15990/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF THE PROCLAMATION OF SALE IN DRC NO. 2695/FB BY THE RECOVERY OFFICER, DRT, KERALA AT ERNAKULAM DATED 06.10.2010.** **Exhibit P2 TRUE COPY OF THE ORDER OF CONFIRMATION OF SALE IN DRC NO. 2695 IN O.A. NO. 15/2007 BEFORE DRT, KERALA AT ERNAKULAM DATED 31.12.2010.** - **Exhibit P3 TRUE COPY OF THE CERTIFICATE OF SALE ISSUED TO RESPONDENTS 2 AND 3 IN DRC NO. 2695 IN O.A. NO. 15/2007 BEFORE DRT, KERALA AT ERNAKULAM DATED 21.01.2011.** - **Exhibit P4 TRUE COPY OF I.A. NO. 13/2021 IN TDRC 437/2016 IN DRC NO. 2695 IN O.A. NO. 15/2007 BEFORE DRT, KERALA AT ERNAKULAM DATED 25.01.2021 FOR SETTING ASIDE THE SALE DATED 01.02.2021.** - **Exhibit P5 TRUE COPY OF I.A. NO. 14/2021 IN TDRC 437/2016 (DRC NO. 2695) IN O.A. NO. 15/2007 BEFORE DRT, KERALA AT ERNAKULAM DATED 25.01.2021.** - **Exhibit P6 TRUE COPY OF THE STAY PETITION FILED AS I.A. NO. 17/2021 IN TDRC 437/2016 (DRC NO. 2695) IN O.A. NO. 15/2007 BEFORE DRT, KERALA AT ERNAKULAM DATED 01.02.2021.** **Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 2.9.2021 IN W.P.C NO. 10817 OF 2021 OF THIS HON'BLE COURT.** - **Exhibit P8 TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER DATED 20.10.2021 IN EXT. P4, P5 & P6.** **Exhibit P9 TRUE COPY OF THE COMMON ORDER IN I.A. NOS. 13/2021 AND 14/2021 IN TDRC NO. 437/2016 DATED 16.11.2021 OF THE DEBTS RECOVERY** ## **WP(C) NO. 15990 OF 2022 ..10..** ## **TRIBUNAL II ERNAKULAM.** - **Exhibit P10 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE DEBT RECOVERY TRIBUNAL DATED 24.12.2021.** - **Exhibit P11 TRUE COPY OF THE JUDGMENT IN W.P.C NO. 3853/2022 DATED 24.03.2022 OF THIS HON'BLE COURT.** - **Exhibit P12 TRUE COPY OF THE JUDGMENT IN WA NO. 554/2022 DATED 04.05.2022.** - **Exhibit P13 TRUE COPY OF THE ORDER OF THE REGISTRY DATED 09.02.2022.** - **Exhibit P14 TRUE TRANSCRIBED COPY OF THE ORDER IN APPEAL NO. 03/2022 DATED 07.05.2022.**