IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30748 of 2008(I)
1. K.O. THOMAS, S/O OUSEPH, PROPRIETOR,
... Petitioner
Vs
1. STATE BANK OF TRAVANCORE,
... Respondent
2. AUTHORISED OFFICER AND CHIEF
3. UNION OF INDIA,
For Petitioner :SRI.P.SAM ZACHARIAH
For Respondent :SRI.K.S.DILIP
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :25/11/2008
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C).No.30748 of 2008-I
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Dated this the 25th day of November, 2008.
JUDGMENT
1.This writ petition was filed on the plea that the
account which has been treated as a non-
performing asset and was classified in terms of
the RBI norms, was not one available for such
classification and the resultant action under
Section 13(2) of the SARFAESI Act is without
jurisdiction.
2.Later, I.A.14626/2008 was allowed without
prejudice to the contentions of the bank, thereby
permitting the petitioner to urge a further plea
by way of amendment, that the impugned
dispossession is invalid on account of infraction
of the statutory rule requiring publication of
WP(C)30748/08 -: 2 :-
notice in English and in vernacular languages in
newspapers.
3.While granting interim relief at the time of
admission, on 3-11-2008, the petitioner was
required to deposit an amount of Rs.10 lakhs
within a period of two weeks as against the total
amount of more than Rs.1.25 crores due to the
bank. The plea of the petitioner is that the
property is worth more than Rs.13 crores. Yet,
not a pie was paid in terms of that interim
order. I.A.No.14670/08 was filed seeking
enlargement of time to make deposit. The ground
projected was that had he gone to the DRT, the
time for instituting the securitisation
application in terms of Section 17 of the
SARFAESI Act would not have run out by now. That
plea was repelled as per the order dated 18-11-
2008 on I.A.No.14670/08 and a last opportunity
was granted by extending the period by another
week. Yet, no remittance is made.
WP(C)30748/08 -: 3 :-
4.The learned counsel for the petitioner states
that the securitisation application was argued
before the DRT and the Tribunal appears to have
been persuaded by the applicant, to grant a
decision in his favour, however that the Tribunal
was reluctant to issue any interlocutory order
because of the pendency of this writ petition and
the interim order issued by this Court.
Obviously, the Tribunal could not have issued any
interlocutory order on the face of the
interdictory order, as issued by this Court, the
superior authority, that governs the parties. The
Tribunal was, therefore, justified in not issuing
any interim order.
5.Now, the learned counsel for the petitioner,
after making an attempt to canvass an argument on
the basis of Rule 8 of the Security Enforcement
Rules, ultimately, sought an opportunity to have
the matter decided on merits by the DRT rather
than face the consequences of a final verdict
being handed down by this Court on the merits of
WP(C)30748/08 -: 4 :-
the contentions in law. It would not be much of
an effort to decide on the plea raised by the
petitioner but in deference to the learned
counsel, I propose to desist from answering the
legal issues raised.
6.The question now would be as to whether the
petitioner has to be permitted to leave without
remitting the amounts covered by the interim
order after having enjoyed that interim order
from 3-11-2008. I am clear in my mind that he is
not to be.
Under such circumstances, it is ordered that
unless the petitioner remits the amount of Rs.10
lacks on or before 28-11-2008, the DRT shall not
pass any interlocutory order in favour of the
petitioner. It is clarified that this condition
would not, in any manner, stand in the way of the
Tribunal in its decision-making process that may
lead to the final order on the securitisation
application. All other issues are left open to be
WP(C)30748/08 -: 5 :-
agitated before the DRT. This writ petition is
ordered accordingly.
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
Sha/251108