## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE N.NAGARESH**
**FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945**
**OP (DRT) NO. 69 OF 2024**
**AGAINST THE ORDER DATED 04.12.2023 IN IA NO.2221 OF 2023 IN SA NO.205/2023 OF DEBT RECOVERY TRIBUNAL-2, ERNAKULAM**
## **PETITIONERS:**
**1 TOJO JOHN AGED 55 YEARS S/O ULAHANNAN ABRAHAM, MUTHUPLAKAL HOUSE, MUTTATHIPPARA P.O., KADANADU, KOTTAYAM, PIN - 686651 2 SELMAM P. SEBASTIAN AGED 48 YEARS W/O TOJO JOHN, MUTHUPLAKAL HOUSE, MUTTATHIPPARA P.O., KADANADU, KOTTAYAM, PIN – 686651**
**BY ADV A.SANIL KUMAR**
## **RESPONDENTS:**
- **1 THE SOUTH INDIAN BANK LTD. REPRESENTED BY ITS BRANCH MANAGER, PRAVITHANAM BRANCH, DO NO.74/F, WARD NO.10, CHOORANOLICKAL ARCADE, ANTHINAD JUNCTION, PRAVITHANAM, KOTTAYAM, PIN - 686651**
- **2 THE AUTHORIZED OFFICER/CHIEF MANAGER SOUTH INDIAN BANK LTD., REGIONAL OFFICE, KOTTAYAM, REGENCY SQUARE, K.K. ROAD, COLLECTORATE P.O., KOTTAYAM, PIN - 686002 BY ADVS. SUNIL SANKAR A VIDYA GANGADHARAN(K/000424/2020)**
**THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **N. NAGARESH, J.**
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## O.P.(DRT) No.69 of 2024
````````````````````````````````````````````````````````````` _Dated this the 1[st] day of March, 2024_
## **J U D G M E N T**
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The petitioners seek to set aside Ext.P9 order dated 04.12.2023 in IA No.2221/2023 in SA No.205/2023 on the files of the Debts Recovery Tribunal-II, Ernakulam. Ext.P9 order sought to be set aside is an order in IA No.2221/2023 seeking to appoint an Advocate Commissioner to report the lie and nature of the secured assets for proper adjudication of the case.
2. The 1[st] petitioner availed a Kisan Credit Card – Overdraft facility of ₹50 lakhs from the 1[st] respondent-Bank in the year 2014 for agricultural purpose. The 2[nd] petitioner, who is the wife of the 1[st] petitioner, was a co-obligant to the Credit facility.
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3. On the failure of the petitioners to produce a registered lease deed, the 1[st] respondent declared the OD facility as Non Performing Asset on 02.04.2021.
4. The Bank invoked the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and issued a demand notice under Section 13(2) thereof. The petitioners state that the mortgaged property is an agricultural property. Hence, the Bank is prohibited from proceeding against the said property in view of the bar under Section 31(i) of the SARFAESI Act. The 2[nd] respondent, however, took symbolic possession of the mortgaged property and filed MC No.179/2023 in the Chief Judicial Magistrate's Court, Kottayam. The Chief Judicial Magistrate's Court appointed an Advocate Commissioner, who in turn issued a notice dated 23.03.2023.
5. The petitioners thereupon filed SA No.205/2023 before the Debts Recovery Tribunal-II, Ernakulam. During the pendency of the SA, the Advocate Commissioner issued
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notice threatening taking over of the property. The petitioners therefore filed IA to amend the SA, which was allowed. The petitioners had also filed IA No.2221/2023 seeking to appoint an Advocate Commissioner to conduct local inspection of the property mortgaged with the Bank in order to ascertain the agricultural nature of the land. By Ext.P9 order, the Debts Recovery Tribunal dismissed the said IA. After the dismissal of Ext.P9 IA on 04.12.2023, the Advocate Commissioner issued Ext.P10 notice dated 09.02.2024 proposing to take over physical possession of the property. It is aggrieved by the said Ext.P9 order and Ext.P10 notice that the petitioners have filed this OP(DRT).
6. The petitioners submitted that the land mortgaged by the petitioners is an agricultural land which cannot be proceeded against under the provisions of the SARFAESI Act in view of Section 31(i). The property is actually put to use as agricultural land. In order to prove that the property mortgaged is an agricultural property, the petitioners need to cause an inspection by Advocate Commissioner. Therefore,
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rejection of IA No.2221/2023 as per Ext.P9 order is illegal and unsustainable.
7. I have heard the learned counsel for the petitioners and the learned Standing Counsel representing respondents 1 and 2.
8. The petitioners were extended with benefit of a Kissan Credit Facily Overdrft of ₹50 lakhs on 24.07.2014. According to the petitioners, the facility was extended for agricultural purpose. On the failure of the petitioners to maintain the OD account, the respondents have initiated proceedings under Section 14 of the SARFAESI Act. The Chief Judicial Magistrate's Court, Kottayam has appointed an Advocate Commissioner to assist to take over possession of the secured asset. The Advocate Commissioner has issued Ext.P10 notice to the petitioners.
9. The crux of the arguments made by the petitioners is that the secured asset mortgaged by the petitioners is agricultural land, put to actual agricultural purpose and hence the secured asset cannot be subject matter of a proceeding
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under Section 14 of the SARFAESI Act.
10. There are restrictions in the SARFAESI Act, 2002 as regards property subjected to agricultural purposes. Section 31 of the SARFAESI Act specifically provides that the provisions of the Act shall not apply to any security interest created in an agricultural land. The legal proposition that the provisions of the SARFAESI Act shall not be applied to agricultural lands is not disputed.
11. But, as far as the petitioners are concerned, the SA is pending and the petitioners can advance arguments based on Section 31(i) at the time of final hearing. If the petitioners are aggrieved by Ext.P9 order whereby the Tribunal has dismissed the petitioners' interim application for taking out an Advocate Commission to ascertain the nature of the land, the petitioners have an effective alternate remedy to approach the Debts Recovery Tribunal challenging Ext.P9. Section 18 of the SARFAESI Act provides for appeals.
12. The petitioners would contend that this Court in the judgment in _**Jayakumar R. v. State Bank of India** [2023_
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_(7) KHC 649],_ in identical circumstances, has interfered with the order of the Debts Recovery Tribunal in rejecting an application for appointment of Advocate Commissioner for similar purpose. The facts involved in _**Jayakumar R.**_ (supra) were different and may not be of any help to the petitioners. While rejecting the application for appointment of Advocate Commissioner in the case of _**Jayakumar R.**_ (supra), the Tribunal held that the petitioner therein has not filed any material before the Tribunal to prove his claim that the secured asset was agricultural property on the date of creation of security interest over the property as laid down by the Hon’ble Apex Court. In the case of the petitioners, the petitioners have opportunity to adduce evidence to prove that the property in question is agricultural land. As far as the petitioners are concerned, there is no finding of the Tribunal in Ext.P9 to the effect that the petitioners have not filed any material to prove their claim.
13. In the afore facts of the case, I do not find any reason to interfere with Ext.P9 order invoking Article 227 of
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the Constitution of India. It cannot be said that the Tribunal has failed to exercise the jurisdiction vested in it or that the Tribunal has exceeded its jurisdiction. The findings of the Tribunal cannot be described as perverse either.
14. As far as the challenge of the petitioners against Ext.P10 notice issued by the Advocate Commissioner is concerned, the petitioners have alternate remedy to challenge the Section 14 proceedings also.
For the afore reasons, I do not find any merit in the OP(DRT). The OP(DRT) is therefore dismissed.
Sd/-
**N. NAGARESH, JUDGE**
aks/01.03.2024
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## **APPENDIX OF OP (DRT) 69/2024**
## **PETITIONER's EXHIBITS**
**ExhibitP1 TRUE COPY OF THE SECURITIZATION APPLICATION NO.205/2023 ON THE FILES OF THE HON'BLE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM DATED 20/04/2023 Exhibit2 TRUE COPY OF I.A. NO. 1363/2023 IN S.A. NO.205/2023 ON THE FILES OF THE HON'BLE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM DATED 20/04/2023 ExhibitP3 TRUE COPY OF THE I.A. NO.2223/2023 IN S.A. NO.205/2023 ON THE FILES OF THE HON'BLE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM DATED 04/07/2023 ExhibitP4 TRUE COPY OF THE AMENDMENT SECURITIZATION APPLICATION NO.205/2023 ON THE FILES OF THE HON'BLE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM DATED 20/09/2023 ExhibitP5 TRUE COPY OF THE WRITTEN STATEMENT IN S.A. NO.205/2023 FILED BY THE RESPONDENTS DATED 21/07/2023 ExhibitP6 TRUE COPY OF THE I.A. NO. 2222/2023 IN S.A. NO. 205/2023 ON THE FILES OF THE HON'BLE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM DATED 05/07/2023 ExhibitP7 TRUE COPY OF I.A. NO.2221/2023 IN S.A. NO.205/2023 ON THE FILES OF THE HON'BLE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM DATED05/07/2023 ExhibitP8 TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A. NO.2221/2023 IN S.A. NO.205/2023 FILED BY THE RESPONDENTS ON THE FILES OF THE HON'BLE DEBTS RECOVERY TRIBUNAL-2, ERNAKULAM DATED 21/07/2023**
## O.P.(DRT) No.69/2024
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|**Exhibit9**|**TRUE COPY OF THE ORDER DATED**|
|---|---|
||**04/12/2023 IN I.A. NO. 2221/2023 IN**|
||**S.A. NO.205/2023 ON THE FILES OF THE**|
||**HON'BLE DEBTS RECOVERY TRIBUNAL-2,**|
||**ERNAKULAM**|
|**ExhibitP10**|**TRUE COPY OF THE POSSESSION NOTICE**|
||**DATED 09/02/2024 ISSUED BY THE**|
||**ADVOCATE COMMISSIONER**|
