Abdul Rahim vs the Authorised Officer

Abdul Rahim vs The Authorised Officer

Type Court Judgment Court Kerala Decided Nov 30, 2023

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https://sooperkanoon.com/case/1369911

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Citation: sooperkanoon.com/1369911
Court: Kerala High Court
Judge: Honourable Mr.Justice N.Nagaresh
Decided On: Nov 30, 2023
Case Number: OP (DRT)/296/2022

Parties & Advocates

Appellant / Petitioner

Abdul Rahim

Respondent

The Authorised Officer

Excerpt

.....debt recovery tribunal, ernakulam.2. the registry of the debt recovery tribunal pointed out the following two defects:(i) no 13(4) notice enclosed.(ii) limitation to be clarified.3. to the said defects, counsel for the petitionerclarified that the section 13(4) notice enclosed vide annexure- iii, mentions issue of section 13(2) notice and the date by which the physical possession will be taken. the limitation was clarified on page 2 of the first paragraph.4. when the sa was resubmitted by the petitioner, the registry further noted that section 13(2) notice was also not produced and that to ascertain fees, either of the two is required.5. to the said objection, the counsel for the petitionerstated that in paragraph 6 of the sa, it is specifically pleaded that the applicant did not get any notice under section 13(2). in ground d of sa, it is specifically shown that the court fee is calculated as ₹26,83,412/-, which is the amount shown payable in annexure-i statement. as annexure-iii possession notice does not show any overdue amount and as no notice under section 13(2) has been served on the applicant, the only option available to the applicant is to calculate the court fee accordingly.6. the counsel for the petitioner is required the registry to note that all such objections raised by the registry are raised by the applicant in the sa as challenged againstannexure-iii. thus, the matter has to be decided by the tribunal and not by the registry. in spite of the said clarifications given, the registry returned the sa stating that the defect not rectified and that since sections 13(2) and 13(4) notices were not produced for calculation of the outstanding dues, 15 days time were granted to cure the defects. as the defects were all properly explained by the petitioner, the petitioner approached this court aggrieved by the action of the registry of the debt recovery tribunal.7. during the course of op (drt), the bank submitted that they will withdraw annexure-iii.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 30TH DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 OP (DRT) NO. 296 OF 2022 AGAINST THE ORDER/JUDGMENT ID 3807/2022 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM PETITIONER/APPLICANT: ABDUL RAHIM AGED 73 YEARS S/O MAMMU, THANATHU PARAMBIL, KOOVAPALLY VILLAGE, KOOVAPALLY P.O., KANJIRAPALLY TALUK, KOTTAYAM DISTRICT, PIN - 686518 BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M SUKANYA S. RESPONDENTS: 1 THE AUTHORISED OFFICER KERALA STATE CO-OPERATIVE BANK LTD., REGIONAL OFFICE, P.B. NO. 140, CENTRAL JUNCTION, KOTTAYAM DISTRICT, PIN - 686001 2 THE DISTRICT CO-OPERATIVE BANK LTD. ERUMELI BRANCH, KOTTAYAM DISTRICT, REPRESENTED BY THE BRANCH MANAGER, PIN - 686509 BY ADVS. SRI.K.RAVIKUMAR, SC, KERALA STATE COOPERATIVE BANK LTD. SRI.ATHUL SHAJI, SC, KOTTAYAM DISTRICT CO.OPERATIVE BANK LTD. THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 30th day of November, 2023 Aggrieved by Annexure-III notice dated 24.03.2022 issued by the Kerala Bank intimating that failure of repayment of loan would result in possession of the secured asset, the petitioner filed SA before the Debt Recovery Tribunal, Ernakulam.

2. The Registry of the Debt Recovery Tribunal pointed out the following two defects:

(i) No 13(4) notice enclosed.

(ii) Limitation to be clarified.

3. To the said defects, counsel for the petitioner

clarified that the Section 13(4) notice enclosed vide Annexure- III, mentions issue of Section 13(2) notice and the date by which the physical possession will be taken. The limitation was clarified on page 2 of the first paragraph.

4. When the SA was resubmitted by the petitioner, the Registry further noted that Section 13(2) notice was also not produced and that to ascertain fees, either of the two is required.

5. To the said objection, the counsel for the petitioner

stated that in paragraph 6 of the SA, it is specifically pleaded that the applicant did not get any notice under Section 13(2). In Ground D of SA, it is specifically shown that the court fee is calculated as ₹26,83,412/-, which is the amount shown payable in Annexure-I Statement. As Annexure-III possession notice does not show any overdue amount and as no notice under Section 13(2) has been served on the applicant, the only option available to the applicant is to calculate the court fee accordingly.

6. The counsel for the petitioner is required the Registry to note that all such objections raised by the Registry are raised by the applicant in the SA as challenged against

Annexure-III. Thus, the matter has to be decided by the Tribunal and not by the Registry. In spite of the said clarifications given, the Registry returned the SA stating that the defect not rectified and that since Sections 13(2) and 13(4) notices were not produced for calculation of the outstanding dues, 15 days time were granted to cure the defects. As the defects were all properly explained by the petitioner, the petitioner approached this Court aggrieved by the action of the Registry of the Debt Recovery Tribunal.

7. During the course of OP (DRT), the Bank submitted that they will withdraw Annexure-III notice and issue a fresh notice. The respondents have accordingly issued Ext.P5 notice.

8. The counsel for the petitioner submitted that Ext.P5 notice also suffers from the same infirmity and the Debt Recovery Tribunal is not likely to entertain a fresh SA, noting the same defects.

9. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.

10. Going through the noting of the Registry of the

Debt Recovery Tribunal and the explanations given by the petitioner, I find that the defect noted by the Registry was properly explained by the petitioner’s counsel. If the Registry had any doubt regarding this, the Registry ought to have placed the matter before the Debt Recovery Tribunal for adjudication of those issues.

11. As the Bank has already issued Ext.P5, it will be

open to the petitioner to challenge the same before the Debt Recovery Tribunal in accordance with law. If the Registry still makes any objections, which is not acceptable to the petitioner, the petitioner will be at liberty to file appeal before the Debt Recovery Tribunal. To enable the petitioner to approach the Debt Recovery Tribunal again, coercive proceedings, if any, shall stand deferred for a period of one month.

The OP (DRT) is disposed of as above. Sd/- N.NAGARESH JUDGE spk APPENDIX OF OP (DRT) 296/2022 PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF THE SECURITIZATION APPLICATION DATED 5.4.2022, FILED ON 6.4.2022, AS RETURNED WITH ALL ENDORSEMENTS AND ANSWERS Exhibit P-2 TRUE COPY OF THE STAY PETITION (UNNUMBERED) DATED 5.4.2022 Exhibit P-3 TRUE COPY OF THE COMPLAINT DATED 30.4.2022 SENT BY E-MAIL TO EDRT- [email protected] Exhibit P-4 TRUE COPY OF THE REPLY DATED 30.6.2022 DETAILS FOR REGISTRATION NUMBER: PMOPG/E/2022/0130355 Exhibit P-5 TRUE COPY OF THE NOTICE DATED NIL ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER

Same Court & Year Kerala · 2023 Same Parties Abdul Rahim vs The Authorised Officer Same Judge Honourable Mr.Justice N.Nagaresh