High Court of KeralaSingle JudgeOriginal petition allowed; Ext.P1 attachment li...

Sasitharan Ramaswamy, Liquidator of India Techs Limited v HDFC Bank Limited and others

Case / Petition Number:OP (DRT) No. 71 of 2022

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Murali Purushothaman
Judgment Date
2022-02-09
Court Decision / Holding
The original petition is allowed with the above directions.
Final Disposition
Original petition allowed; Ext.P1 attachment lifted; endorsements removed from encumbrance and revenue records; no order as to costs.

Parties to the Case

Appellants / Petitioners

  • Sasitharan Ramaswamy, Liquidator of India Techs Limited

Respondents

  • HDFC Bank Limited
  • George Vinci Thomas
  • Thomas George
  • Sub Registrar, SRO, Maradu, Ernakulam
  • Village Officer

Legal Representation & Advocates

Counsels for Petitioners

  • • P. V. Vinod (Bengalam), Adv., Indialaw

Counsels for Respondents

  • • C. N. Prabhakaran, Sr. Government Pleader
  • • Binny Joseph, Senior Counsel, HDFC

Case Synopsis & Summary

This Kerala High Court case, OP (DRT) No. 71 of 2022, concerns the Liquidator of India Techs Limited challenging an attachment order (Ext. P1) issued by the Debts Recovery Tribunal over assets that form part of the Corporate Debtor’s liquidation estate. Following the NCLT Kochi Bench’s 2021 directive under the Insolvency and Bankruptcy Code, 2016, the Liquidator took custody of the “Scheduled Properties.” An encumbrance in favour of HDFC Bank for approximately Rs. 1.95 crore was found on the encumbrance certificate and revenue records. The Liquidator contends that Sec. 36 vests assets in the Liquidation Estate and requires sale under Sec. 53; an attachment record obstructs sale at best value and undermines the liquidation’s time-bound objective. He states that Bank’s claim has been admitted under Regulation 18 of the IBBI (Liquidation Process) Regulations, 2016, and Bank has given a no-objection letter (Exhibit P4) to proceed with lifting. The Bank, while not objecting to lifting, has already filed its claim. The Court relies on the Supreme Court’ s guidance in State Bar Council of Madhya Pradesh v Union of India (SLP(C) No. 10911 of 2011) to exercise jurisdiction under Article 226 where DRT matters are involved. Balancing stakeholders’ interests and liquidation goals, the Court lifts Ext. P1 and directs removal of endorsements from encumbrance/revenue records, allowing the petition with no costs order.

Provisions of Law Cited

Insolvency and Bankruptcy Code, 2016, Section 36Insolvency and Bankruptcy Code, 2016, Section 36(3)(b)Insolvency and Bankruptcy Code, 2016, Section 53Insolvency and Bankruptcy Code, 2016, Section 33(1)Insolvency Bankruptcy Board of India (Liquidation Process) Regulations, 2016, Regulation 18Constitution of India, Article 226

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that Ext. P1 attachment obstructs the liquidation process and prevents maximizing the value of the Liquidation Estate. Under Sections 36 and 53 of the IBC, all assets vest in the Liquidator for orderly sale to satisfy creditors. Extending the attachment on revenue records reduces the pool of assets available for sale and undermines the time-bound liquidation process. The Liquidator has admitted the Bank’s claim under Regulation 18 of the IBBI Regulations; Ext. P4 shows the Bank’s no objections to proceeding with lifting the attachment. Citing the Supreme Court in State Bar Council of Madhya Pradesh v. Union of India (SLP(C) No. 10911 of 2011), the petitioner contends that this Court may entertain matters under Article 226 in the absence of the presiding DRT officer to ensure expeditious liquidation, and that the balance of interests of all stakeholders necessitates removal of the attachment so as to fetch maximum price.

Contentions of Respondents

The respondents contend there is no objection to lifting Ext. P1 attachment and that the Bank has already filed its claim with the Liquidator. They emphasize liquidation efficiency and ensuring the Bank’s security while not obstructing the liquidation process. The Bank asserts that it has lodged its claim, and the lifting of attachment aligns with maximizing the liquidation value without prejudicing the Bank’s secured interest, particularly given the liquidation framework under the IBC and IBBI Regulations.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
State Bar Council of Madhya Pradesh v. Union of IndiaSLP(C) No. 10911 of 2011PositiveCited to validate the Court’s jurisdiction under Article 226 to entertain matters before the DRT in the absence of a presiding officer, aligning with Supreme Court guidance.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Sasitharan Ramaswamy, Liquidator of India Techs Limited v HDFC Bank Limited and others and instantly map out authorities that support, challenge, or govern your position.

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 WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943** **OP (DRT) NO. 71 OF 2022** ## **PETITIONER/S:** **SASITHARAN RAMASWAMY AGED 65 YEARS LIQUIDATOR OF INDIA TECHS LIMITED, FIRST FLOOR, PATTATHIL HOUSE KADAVANTHARA KOCHI ERNAKULAM, PIN - 682020** **BY ADVS. P.V.VINOD (BENGALAM) INDIALAW** ## **RESPONDENT/S:** |**1**|**HDFC BANK LIMITED**| |---|---| ||**HDFC BANK LIMITED**| ||**DEPARTMENT OF SPECIAL OPERATION**| ||**2ND FLOOR CHOICE TOWER**| ||**PANAMPILLY NAGAR ERNAKULAM**| ||**ERNAKULAM, PIN - 682036**| |**2**|**GEORGE VINCI THOMAS**| ||**RESIDING AT NO.26/507-A**| ||**ELYSIA, YACHT CLUB ENCLAVE**| ||**KONTHURUTHY**| ||**THEVARA P O**| ||**ERNAKULAM, PIN - 682020**| |**3**|**THOMAS GEORGE**| ||**RESIDING AT NO.26/507-A**| ||**ELYSIA, YACHT CLUB ENCLAVE**| ||**KONTHURUTHY**| ||**THEVARA P O,ERNAKULAM**| ||**ERNAKULAM, PIN - 682020**| |**4**|**SUB REGISTRAR**| ||**SUB REGISTRAR, SRO, MARADU,**| ||**ERNAKULAM**| ||**ERNAKULAM, PIN - 682304**| |**5**|**VILLAGE OFFICER**| **OP (DRT) NO. 71 OF 2022 ..2..** **KUMBALAM, ERNAKULAM ERNAKULAM, PIN - 682506** **BY ADVS. R BY SRI.C.N.PRABHAKARAN, SR.GP R BY SRI.BINNY JOSEPH, SC HDFC** **THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (DRT) NO. 71 OF 2022 ..3..** ## **JUDGMENT** The Liquidator appointed by the National Company Law Tribunal Kochi Bench for the purpose of liquidation of Corporate Debtor Company 'India Techs Limited' has filed this writ petition for lifting Ext.P1 order of attachment passed by the Debts Recovery Tribunal, Ernakulam Bench (DRT) over the assets now forming part of the Liquidation Estate. 2. The HDFC Bank, the 1[st] respondent filed O.A. No.9/2015 before the DRT seeking to recover its dues from India Techs Limited, and the DRT by Ext. P1 order in I.A. No.613 of 2015 restrained India Techs Limited and the respondents 2 and 3 herein, the Managing Director and Director of India Techs Limited from transferring, alienating or otherwise creating any charge or encumbrance or disposing of the scheduled **OP (DRT) NO. 71 OF 2022 ..4..** properties therein, or committing any waste or damages thereon, until further orders of the Tribunal. 3. The National Company Law Tribunal, by Ext.P2 order dated 05.03.2021 passed under Section 33 (1) of the Insolvency and Bankruptcy Code, 2016, (hereinafter referred to as the 'Code' for short) directed the petitioner herein to act as Liquidator for the purpose of liquidation of India Techs Limited. 4. Pursuant to Ext.P2 order of liquidation, the petitioner took into his custody item Nos.1 to 6 of the properties owned by the Corporate Debtor described as 'Scheduled Properties' in Ext.P1 order of DRT. However, on verification of the Encumbrance Certificate of the Scheduled Properties, the petitioner noticed that an encumbrance is registered in the revenue records in favour of the 1[st] Respondent Bank against the scheduled properties pursuant to Ext.P1 **OP (DRT) NO. 71 OF 2022 ..5..** order of DRT for an amount of Rs.1.95 Crores. 5. As per Section 36 of the Code, upon liquidation of the Corporate Debtor, all assets owned by the Corporate Debtor shall form part of the Liquidation Estate and shall vest with the Liquidator, which shall include the encumbered assets of the Corporate Debtor under Section 36(3)(b) of the Code. The Liquidator is required to sell the immovable properties and all other assets, for the purpose of liquidation and distribute the proceeds in accordance with Section 53 of the Code. According to the petitioner, Ext.P1 order of attachment and its endorsement on the revenue records will be impediment in bringing in prospective purchasers and maximising the value of the Liquidation Estate in the process of liquidation, which is a time bound process. 6. The petitioner further points out that the Bank had already submitted its claim to the petitioner under **OP (DRT) NO. 71 OF 2022 ..6..** Section 18 of Insolvency Bankruptcy Board of India (Liquidation Process) Regulations 2016, and its entire claim of Rs.5,24,12,432.75 (as on 04.03.2021) was admitted by him. The petitioner also relies on Ext.P4 no objection letter dated 18.10.2021 issued by the Bank to the petitioner to proceed with filing of necessary application before the DRT for lifting Ext.P1 attachment order. 7. the moved an Accordingly, petitioner interlocutory application on 25/10/2021 before DRT to lift Ext.P1 order of attachment. Since presently there is no Presiding Officer for the DRT, Ernakulam Bench, the matter could not be heard and the petitioner has thus approached this Court in the light of the order dated 16.12.2021 of the Hon'ble Supreme Court in SLP(C) No.10911 of 2011 in the matter of **State Bar Council of Madhya Pradesh** _**v**_ **. Union of India** for direction **OP (DRT) NO. 71 OF 2022 ..7..** to lift Ext.P1 order of attachment and for direction to respondents 4 and 5 to remove the attachment of properties scheduled in Ext.P1 order from the Encumbrance Record and Revenue Records. 8. Heard Sri. Vinod P.V. the learned counsel for the petitioner, Sri. B.Jayashankar, the learned counsel for the 1[st] respondent Bank and Sri.C.N.Prabhakaran, the learned Government Pleader for the respondents 4 and 5. Though notice was issued to respondents 2 and 3 by Special Messenger, there is no appearance. 9. As per Ext.P2 order of the National Company Law Tribunal, the petitioner has been appointed as the Liquidator for the purpose of liquidation of India Techs Limited. As per Section 36 of the Code, upon liquidation of the Corporate Debtor, all assets owned by the Corporate Debtor shall form part of the Liquidation Estate and shall vest with the Liquidator, **OP (DRT) NO. 71 OF 2022 ..8..** which shall include the encumbered assets of the Corporate Debtor under Section 36(3)(b) of the Code. The Liquidator is required to sell the immovable properties and all other assets, for the purpose of liquidation and distribute the proceeds in accordance with Section 53 of the Code. The properties must fetch maximum price to take care of the interests of various stakeholders, who are entitled for the distribution of the proceeds of the sale of the assets of the Corporate Debtor company in liquidation. Ext.P1 order of attachment and its endorsement on the revenue records will therefore be an impediment in bringing in prospective purchasers and fetching maximum price for the properties. Further, the Bank has already lodged their claim before the liquidator under Section 18 of Insolvency Bankruptcy Board of India (Liquidation Process) Regulations 2016. Sri.B. **OP (DRT) NO. 71 OF 2022 ..9..** Jayashankar, the learned Counsel for the 1[st] respondent Bank submits that the Bank has no objection in lifting Ext.P1 order of attachment and they have already filed their claim before the Liquidator. 10. In the said circumstances, taking into account the interests of various stakeholders, who are entitled for the distribution of the proceeds of the sale of the assets of the company in liquidation, to expedite the liquidation process, the stand of the Bank that it has no objection in lifting the attachment and the order dated 16.12.2021 of the Hon'ble Supreme Court in **State Bar Council of Madhya Pradesh** (supra) to entertain matters within the jurisdiction of the DRT by this Court under Article 226 of the Constitution of India and also in view of nonavailability of members, Ext.P1 order of attachment passed in favour of the 1[st] respondent by the DRT is lifted and the respondents 4 and 5 are **OP (DRT) NO. 71 OF 2022 ..10..** directed to efface the endorsement regarding Ext.P1 order of attachment from the concerned Encumbrance Records and Revenue Records forthwith. The original petition is allowed with the above directions. No order as to costs. ## **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB/09/02/2022 **OP (DRT) NO. 71 OF 2022 ..11..** ## **APPENDIX OF OP (DRT) 71/2022** ## **PETITIONER ANNEXURES** **Exhibit P3 A COPY OF ENCUMBRANCE CERTIFICATE ISSUED BY SRO MARADU** **Exhibit P4 NOC ISSUED BY HDFC BANK LTD DATED 18.09.2021** **Exhibit P5 COPY OF APPLICATION FILED BEFORE DRT1 ERNAKULAM FOR ADVANCE HEARING AND LIFTING THE ATTACHMENT ORDER DATED 20.04.2015**