Sreedhanya Babu v. The Authorized Officer, HDFC Bank; Sanjeevi CK; Dr. Sunil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** ## **OP (DRT) NO. 426 OF 2022** **AGAINST THE ORDER/JUDGMENTSA 365/2019 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM** ## **PETITIONER:** **SREEDHANYA BABU AGED 33 YEARS RESIDING AT C 4 TC 9/570-1 SREEDANYA JAWAHAR NAGAR , KAWADIYAR,THIRUVANANTHAPURAM, PIN - 695010 BY ADV P.M.GIRIJAVALLABHAN** ## **RESPONDENTS:** **1 THE AUTHORIZED OFFICER AGED 31 YEARS HDFC HOUSE, VAZHUTHACAUD, POST BOX NO.2288, THIRUVANANTHAPURAM, PIN - 695010 2 SANJEEV CK AGED 62 YEARS S/O.CHARLES, PRISM CASTING NO 7D, KOWDIAR MANOR JAWAHAR NAGAR TRIVANDRUM., PIN - 695003 *3 DR. SUNIL. ( SOUGHT TO BE IMPLEADED ) S/O LATE JANARDHANAN UNNITHAN, RESIDING AT MADHAVAM, THEVALLY P.O, KOLLAM DISTRICT *IMPLEADED AS PER ORDER DATED 14.11.2022 IN I.A. NO.1 OF 2022 BY ADVS. SRI.K.K.CHANDRAN PILLAI, SC, HDFC Jani Ambily S LAKSHMI ANIL(K/002184/2022) K.K.CHANDRAN PILLAI (SR.)(C-41)** **THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION** **ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(DRT) No.426 of 2022 2 ## **JUDGMENT** ## **Dated this the 14[th] day of November, 2022** The petitioner has approached this Court being aggrieved by the fact that the interlocutory application filed by the petitioner before the Debts Recovery Tribunal has been rejected by the Tribunal as is evident from Ext.P4 proceedings dated 29.08.2022. 2. The petitioner claims to be a person who executed an agreement for purchase of the property which has been sold by the respondent bank for recovery of amounts due from the 2[nd] respondent. It is the case of the petitioner that the petitioner had paid a sum of Rs.2 crores to settle another liability of the 2[nd] respondent on the premise that the property which was sold by the respondent bank would be conveyed to him. It is also submitted that the petitioner has already filed O.S. No.231/2019 before OP(DRT) No.426 of 2022 3 the Sub Court, Thiruvananthapuram and has obtained an injunction order against the 2[nd] respondent. 3. The learned counsel appearing for the respondent bank states that the petitioner who claims to have an agreement with the 2[nd] respondent has no _locus standi_ to contest the matter before the Tribunal. It is submitted that the petitioner is not a proper or necessary party to the proceedings before the Tribunal and the Tribunal has rightly rejected the petition for impleading. 4. The learned counsel appearing for the additional 3[rd] respondent (auction purchaser) has pointed out from a copy of the plaint in O.S. No.231/2019 that, it appears that another item of property belonging to the 2[nd] respondent as mentioned in that suit and the prayer in the suit is only for return of advance money. It is submitted that a different sale agreement has also been produced along with the plaint. It is submitted that even if OP(DRT) No.426 of 2022 4 Ext.P1 agreement for sale is taken into consideration, it is evident that the petitioner was clearly aware of the fact that the property in question was mortgaged with the HDFC bank. It is submitted that no relief whatsoever can be granted to the petitioner in the present original petition. 5. The learned counsel appearing for the petitioner points out that the attachment obtained by the petitioner is evident from the encumbrance certificate in respect of the property sold by the respondent bank and reference is made in this regard to Ext.P3. 6. The learned counsel appearing for the respondent bank points out that any attachment obtained by the petitioner after the date of mortgage has absolutely no effect on the proceedings initiated by the bank and this is already settled by the Division Bench judgment of this Court in _**Secretary, Keechery Service Co-operative Bank Ltd. v.**_ OP(DRT) No.426 of 2022 5 _**Sajitha Nizar [2020 (5) KHC 231] and Travancore Dewasom Board v. Deputy Examiner Local Fund Audit & other [2020 (3) KHC 129]**_ . 7. Having heard the learned counsel for the petitioner, the learned counsel appearing for the respondent bank and the learned counsel appearing for the additional 3[rd] respondent, I am of the view that there is considerable merit in the contention taken by the learned counsel appearing for the respondent bank and the learned counsel appearing for the additional 3[rd] respondent. 8. The petitioner claims that he had paid a huge amount as advance for purchasing an item of property from the 2[nd] respondent. It is evident from the sale agreement which is stated to have been executed between the petitioner and the 2[nd] respondent, that the petitioner was well aware of the fact that the property in question was mortgaged with the respondent bank. Notwithstanding the fact that OP(DRT) No.426 of 2022 6 the petitioner was aware of the mortgage, the petitioner went ahead and paid a huge amount as advance to the 2[nd] respondent. On the 2[nd] respondent failing to clear the liability of the respondent bank, the property of the 2[nd] respondent was brought to sale by the respondent bank. The petitioner who entered into an agreement knowing fully well that the property was mortgaged cannot be heard to contend that he is in any manner aggrieved by the fact that the property in question was sold by the respondent bank. That apart, it appears from the plaint averments in O.S. No.231/2019, that yet another item of property of a larger extent belonging to the 2[nd] respondent is also referred to in that suit. Further, the prayer in that suit is only for a return of the advance money. 9. Taking all the aforesaid facts cumulatively into consideration, I am of the opinion that the Tribunal committed no error in dismissing the impleading 7 OP(DRT) No.426 of 2022 petition filed by the petitioner to get himself impleaded in the Securitisation Application filed by the 2[nd] respondent. The original petition fails and it is accordingly dismissed. **Sd/-** **GOPINATH P.** **JUDGE** RMV OP(DRT) No.426 of 2022 8 ## **APPENDIX OF OP (DRT) 426/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE SALE AGREEMENT EXECUTED BY THE PETITIONER Exhibit P2 THE TRUE COPY OF THE ORDER IN IA 285/2019 IN OS 231/2019 Exhibit P3 THE TRUE COPY OF THE ENCUMBRANCE CERTIFICATE REFLECTING THE ATTACHMENT OF SUB COURT IN THE SUBJECT SCHEDULE PROPERTY Exhibit P4 THE TRUE COPY OF THE PROCEEDINGS OF DRT 2 DATED 29/8/2022 Exhibit P5 THE TRUE COPY OF THE PETITION IN IA 1613/2022 ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** ## **P.A.TO JUDGE**