Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 OP (DRT) NO. 496 OF 2023 AGAINST THE ORDER DATED 08.11.2023 IN TSA 32/2017 OF DEBT RECOVERY TRIBUNAL- 2, ERNAKULAM PETITIONERS: 1 JOSEPH AGED 45 YEARS, S/O THOMAS, ELAVUMKAL HOUSE, SANTHIGRAM P O, IDUKKI DISTRICT, PIN - 685 514. 2 ANTONY ULAHANNAN AGED 63 YEARS, SO ULAHANNAN, MADUKKOLLIL HOUSE, SANTHIGRAM P O, IDUKKI DISTRICT., PIN - 685 514. BY ADV S.SACHITHANANDA PAI RESPONDENTS:
1 THE AUTHORISED OFFICER UNDER SARFAESI ACT THE FEDERAL BANK LTD, ASSET RECOVERY BRANCH, THEKKUMKAL BUILDING, T B ROAD, KATTAYAM., PIN - 686 001. 2 THE REGISTRAR DEBT RECOVERY TRIBUNAL II, ERNAKULAM, PIN - 682 036. 3 REJI JOHN S/O JOHN, CHIRAYIL HOUSE, NEAR CHILDREN'S LIBRARY, KOTTAYAM., PIN - 686 001. 4 RITCHU JOHN D/O JOHN, CHIRAYIL HOUSE, NEAR CHILDREN'S LIBRARY, KOTTAYAM., PIN - 686 001. BY ADV MOHAN JACOB GEORGE THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2:
N. NAGARESH, J.
````````````````````````````````````````````````````````````` O.P.(DRT) No.496 of 2023 ````````````````````````````````````````````````````````````` Dated this the 1st day of December, 2023
JUDGMENT
The petitioners, who are the applicants in TSA No.32/2017 (SA No.4/2017) of the Debt Recovery Tribunal-II, Ernakulam, have filed this OP(DRT) seeking to direct the Tribunal to issue certified copy of the order dated 08.11.2023 in IA No.2652/2023 in TSA No.32/2017 and to direct the Tribunal to accept the documents on record produced as per Ext.P2.
2. The petitioners filed TSA No.32/2017 before the
Debt Recovery Tribunal-II, Ernakulam aggrieved by the coercive proceedings initiated by the Federal Bank Limited invoking the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The :3:
petitioners stated that they purchased 60.29 Ares of agricultural property in Udumbanchola Taluk by two separate sale deeds in the year 2011 and 2012. Subsequently, the petitioners came to know that the predecessor-in-interest of the property had availed loan from the Bank pleding these properties and recovery proceedings are pending. As the recovery proceedings initiated by the Bank was only at the stage of confirmation of the sale of the secured asset, the
petitioners approached the Debt Recovery Tribunal challenging the securitisation proceedings.
3. The petitioners state that OA No.449/2015 filed by
the Bank is also pending before the Debt Recovery Tribunal. The Bank has stated in the said OA that financial advance was by way of Agricultural Cash Credit. The pleading itself makes it clear that the secured asset is agricultural property. In order to prove the fact that the secured asset is agricultural land, the petitioners filed an application to
appoint Advocate Commissioner for local inspection. The said application was dismissed by the Tribunal. In OP(DRT) :4: No.214/2023 filed by the petitioners, this Court, while dismissing the OP(DRT), observed that the petitioners can substantiate the question whether the property is agricultural land at a relevant point of time before the Tribunal.
4. The petitioners therefore filed an application to receive additional documents and to amend the application by incorporating new documents in the index. The said
Ext.P2 application stands dismissed by order dated 08.11.2023 of the Tribunal. The petitioners thereafter filed Ext.P3 copy application dated 08.11.2023 for issuance of certified copy of the order in IA No.2652/2023. The Tribunal has not issued certified copy. It is aggrieved by the said
refusal by the Tribunal to issue certified copy of the order
dated 08.11.2023 in IA No.2652/2023 in TSA No.32/2017 that the petitioners have filed this OP(DRT).
5. The Standing Counsel entered appearance on
behalf of the respondents and stoutly resisted the OP(DRT). The Standing Counsel submitted that if the petitioners are aggrieved by an order of the Debt Recovery Tribunal, the :5:
petitioners have to approach the Appellate Tribunal. The S.A. was filed by the petitioners six years ago. Therefore, the application for amendment of the SA is highly belated and rightly dismissed by the Tribunal. The petitioners have sought amendment of the S.A. without proper pleadings. Therefore, the Tribunal rightly rejected the IA for amendment filed by the petitioners. The said order is not liable to be interfered by this Court.
6. I have heard the learned counsel for the petitioners and the learned Standing Counsel representing the respondents.
7. The petitioners filed TSA No.32/2017 (SA
No.4/2017) aggrieved by the SARFAESI proceedings initiated by the respondents. The prime contention of the petitioners is that the property proceeded against by the respondents is agricultural property, which cannot be taken over under the SARFAESI Act. In order to substantiate the fact that the secured asset is an agricultural land, the petitioners filed IA No.58/2017 seeking to appoint an
:6: Advocate Commissioner. The said IA was dismissed. This Court also dismissed OP(DRT) No.214/2023 filed by the petitioners holding that there is no error or illegality in the
order passed by the Tribunal rejecting the application of the
petitioners for appointment of Advocate Commissioner. However, this Court observed that it would be up to the petitioners to substantiate the question whether the property was an agricultural land at the relevant point of time.
8. It was under the afore circumstances that the
petitioners filed Ext.P2 IA No.2652/2023 which was dismissed by the Tribunal as per Ext.P4 order. In Ext.P4 order, the Tribunal has held that the present amendment application is filed after a period of six years and that the amendment in the IA is not at all necessary for the adjudication of the issue raised in the TSA.
9. It is to be noted that the petitioners had
approached this Court earlier filing OP(DRT) No.214/2023, challenging the order of the Tribunal refusing to appoint Advocate Commissioner to ascertain the nature of the :7: property. Though this Court dismissed OP(DRT) No.214/2023 by Ext.P1 judgment dated 23.05.2023, this Court held that it would be open to the petitioners to substantiate the issue at the relevant point of time. It was thereafter that the petitioners filed IA No.2652/2023.
10. A perusal of Ext.P2 IA would show that the IA is basically to accept additional documents sought to be marked as Annexure-A11 to Annexure-A20. It is rather an
application to accept additional documents than an application for amendment. The petitioners have filed the said IA as this Court permitted the petitioners to raise the issue at the relevant point of time. In such circumstances, I find prima facie force in the arguments of the petitioners.
11. The petitioners, in fact, want to challenge Ext.P4
order of the Debt Recovery Tribunal by filing appeal before
the Debt Recovery Appellate Tribunal. It is for the said purpose that the petitioners submitted application for certified copy of Ext.P4. If the Debt Recovery Tribunal proceeds with the hearing of the TSA No.32/2017 without giving an :8: opportunity to the petitioners to file appeal, the petitioners are likely to be prejudiced in so far as their defence will be weakened. In the afore facts and circumstances, the OP(DRT) is disposed of directing the Debt Recovery
Tribunal-II, Ernakulam to issue certified copy of the order
dated 08.11.2023 in IA No.2652/2023 in TSA No.32/2017 to the petitioners within a period of one week. Further proceedings in the TSA shall stand deferred for a period of one month, to enable the petitioners to approach the Debt
Recovery Appellate Tribunal challenging the order in IA No.2652/2023. Sd/- N. NAGARESH, JUDGE aks/28.11.2023 :9: APPENDIX OF OP (DRT) 496/2023 PETITIONERS' EXHIBITS Exhibit P1 COPY OF THE JUDGMENT DATED 23/05/2023 IN O P (DRT) 214/2023. Exhibit P2 COPY OF APPLICATION IN I A 2652/2023 DATED 16.06.2023. Exhibit P3 COPY APPLICATION DATED 08.11.2023 FOR CERTIFIED COPY OF THE ORDER IN I A Exhibit P4 COPY OF THE PROCEEDINGS DATED