Thitta Purushothaman and M/S Pioneer Auto Engineering Works v The South Indian Bank Ltd and Pothan Rajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, 1944** ## **OP (DRT) NO. 448 OF 2022** ## **PETITIONERS:** 1 THITTA PURUSHOTHAMAN, AGED 62 YEARS MECHANIC RESIDING AT THITTA HOUSE AZHIKODE AMSON AND DESOM, P.O AZHIKODE, KANNUR , PIN - 670009 2 M/S PIONEER AUTO ENGINEERING WORKS AGED 1 YEARS , NEAR DHANALAKSHMI HOSPITAL, KANNOTHUMCHAL ROAD, THANA, KANNUR REPRESENTED BY ITS MANAGING PARTNER THITTA PURUSHOTHAMAN , PIN - 670012 BY ADVS. K.REEHA KHADER K.P.PRADEEP ## **RESPONDENTS:** 1 THE SOUTH INDIAN BANK LTD, REGIONAL OFFICE, KVR TOWER, PAMPAN MADHAVAN ROAD, OPPOSITE LIC BUILDING, TALAP, KANNURREPRESENTED BY ITS AUTHORISED OFFICER , PIN - 670002 2 POTHAN RAJAN, AGED 63 YEARS S/O NARAYANAN, MECHANIC RESIDING AT KOUSTHUBHAM, PALLIKKULAM P.O, CHIRAKKAL, KANNUR, PIN - 670011 ADV. MOHAN JACOB GEORGE (SC) ## **THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION** **ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (DRT) No. 448 of 2022 **..2..** ## **JUDGMENT** ## **Dated this the 28[th] day of November, 2022** The petitioners had earlier approached this Court challenging the proceedings initiated against the petitioners under the provisions of the SARFAESI Act by filing W.P. (C) No. 24035 of 2022. That writ petition was dismissed by this Court by judgment dated 04.08.2022, specifically finding that the remedy of the petitioners lies in challenging the proceedings before the Debts Recovery Tribunal and not by filing a writ petition under Article 226 of the Constitution of India. This Court relied on the judgment of the Supreme Court in _**Sree Anandhakumar Mills Limited v. Indian Overseas Bank and others [2019 (14) SCC 788]** in_ deciding the earlier writ petition filed by the petitioners. 2. The records show that the petitioners, thereafter, filed an application under Section 17 of the OP (DRT) No. 448 of 2022 **==> picture [31 x 8] intentionally omitted <==** SARFAESI Act before the Debts Recovery Tribunal. On 15.09.2022, that application has been rejected by the Tribunal by Ext.P4 order, finding that the Securitization Application was filed beyond the time prescribed under Section 17 of the SARFAESI Act. 3. The learned counsel appearing for the petitioners would state that the writ petition filed on 21.07.2022 was disposed of by this Court on 04.08.2022. It is submitted that the certified copy of the judgment was received only on 24.08.2022 and if the period of forty-five days for filing the appeal is counted from that date, the securitization Application filed by the petitioners is in time. 4. Adv. Mohan Jacob George, the learned counsel appearing for the respondent bank points out that the period from 04.08.2022 to 24.08.2022 cannot be excluded under Section 14 of the Limitation Act and only OP (DRT) No. 448 of 2022 **==> picture [31 x 8] intentionally omitted <==** the period during which the petitioner was prosecuting the matter can be excluded. It is also submitted that since the proceeding before the Debts Recovery Tribunal is not one in the continuation of the proceedings before this Court, the provisions of Section 12 of the Limitation Act does not apply. It is also submitted that the petitioners were well aware of the terms of the judgment on 04.08.2022 itself, as the judgment was pronounced in open Court and the petitioners need not have waited till 15.09.2022 to file the Securitization Application. It is submitted that even if the date on which they received the certified copy of the judgment is taken into account, they were still in time to file the Securitization Application as the limitation could have run out only by or about 27.08.2022. 5. The learned counsel appearing for the petitioners, in reply, would submit that very valuable OP (DRT) No. 448 of 2022 **==> picture [31 x 8] intentionally omitted <==** property over which the petitioners have a right is being proceeded against without considering the claim of the petitioners and the petitioners will be put to serious prejudice, if the proceedings are allowed to be continued without a chance for adjudication. It is submitted that considering the facts and circumstances of the case, the period from 21.07.2022 till 24.08.2022 has to be excluded for the purposes of determining any period of limitation within which the petitioners had to approach the Tribunal. 6. Having heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent bank, I am of the view that there is considerable merit in the contention taken by the learned counsel for the respondent bank that only the period from 21.07.2022 till 04.08.2022 can be excluded for the purposes of determining any period of limitation, OP (DRT) No. 448 of 2022 **==> picture [31 x 8] intentionally omitted <==** especially since the provisions of Section 12 of the Limitation Act does not apply to the proceedings. The petitioners need not have waited to receive the certified copy of the judgment to file the Securitization Application. Even if the date of issuance of the certified copy of the judgment is taken into account, the petitioners were till in time and they could have filed the Securitization Application on or before 27.08.2022. 7. However, purely as a matter of indulgence, and taking into account the peculiar facts and circumstances of the case, and also considering the fact that the petitioners claim to be third parties, who are in no way connected with the loan transaction, the original petition will stand disposed of directing the Tribunal to exclude the period from 21.07.2022 (date of filing of the earlier writ petition) till 24.08.2022 (the date on which the petitioners received a certified copy of the judgment) OP (DRT) No. 448 of 2022 **==> picture [31 x 8] intentionally omitted <==** for the purpose of determining the period of limitation within which the Securitization Application had to be filed by the petitioners. 8. I make it clear that, I have not expressed any opinion on merits and it will be open to the Tribunal to decide the matter in accordance with law. It is also made clear that the order is being issued purely as a matter of indulgence and shall not be treated as a precedent in any other case. The Original Petition is disposed of as above. **Sd/-** **GOPINATH P. JUDGE** RMV OP (DRT) No. 448 of 2022 **..8..** ## **APPENDIX OF OP (DRT) 448/2022** PETITIONER EXHIBITS Exhibit P1 ADVOCATE COMMISSIONER NOTICE ISSUED ON 13.07.2022 Exhibit P2 COPY OF THE ORDER IN W P ( C ) 24035/22 DATED 04.08.2022 BEFORE THE HON;BLE HIGH COURT OF KERALA Exhibit P3 COPY OF THE S A BEFORE THE DRT -1 ERNAKULAM Exhibit P4 COPY OF ORDER IN NDN ( S A ) NO. 1390/22 OF DRT-1 ERNAKULAM DATED 03.11.2022 ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** ## **P.A.TO JUDGE**