IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26654 of 2009(B)
1. SOMARAJAN, S/O.NANU
... Petitioner
Vs
1. INDIAN BANK, KOLLAM BRANCH, KOLLAM.
... Respondent
2. M/S. SUNDARASWARAN
3. S.MOHANAN, S/O.SUNDARESWARAN
4. S.VIJAYALAKSHMI, D/O.N.SUNDARESWARAN
5. S.MANJU, S/O. N.SUNDARESWARAN
6. THE DEBTS RECOVERY APPELLATE TRIBUNAL
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :SMT.SHAHNA KARTHIKEYAN
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :30/09/2009
O R D E R
C.K. ABDUL REHIM, J
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W.P.(C)No. 26654 of 2009
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Dated this the 30th day of September, 2009
J U D G M E N T
1. Against proceedings initiated by the 1st respondent Bank under the provisions of the
Securitisation And Reconstruction of Financial Assets And
Enforcement of Security Interest Act, 2002 (SARFAESI Act)
and challenging the proceedings of sale conducted with
respect to the secured assets, the petitioner had already
filed a Securitisation Application as S.A. No.154/08 before
the Debts Recovery Tribunal, Ernakulam. Ext.P2 is the
order issued by the DRT, Ernakulam whereby the above
said securitisation application is dismissed finding that the
petitioner has no locus standi to file such a petition, he
being not an “aggrieved person” with respect to the
proceedings initiated under Section 13 (4) of the Act.
However, while dismissing the Securitisation Application,
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the DRT had permitted the Bank to proceed with further
action in accordance with law only after 30 days from the
date of receipt of Ext.P2 order. It is submitted that the
petitioner had preferred appeal against Ext.P2 order before
the Debts Recovery Appellate Tribunal, Chennai as
evidenced by Ext.P3 memorandum of appeal. Further it is
submitted that an inter locutory application was also filed
along with the appeal seeking stay of all further
proceedings pursuant to the sale conducted. Grievance of
the petitioner is that since the Debt Recovery Appellate
Tribunal, Chennai is not having sitting because there is no
incumbent posted to that Tribunal, after the former
presiding officer had demitted charge, he is not in a position
to move the stay application before that Appellate Tribunal,
and to seek interim relief thereon. Therefore the petitioner
is seeking directions for consideration of the appeal and
stay petition on an earlier date and still then to keep in
abeyance further proceedings.
2. When the Writ Petition came up for consideration
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on 23.09.2009 this court directed the petitioner to approach
the Debt Recovery Appellate Tribunal, Bombay, which is
having conferred with the charge of the Debt Recovery
Appellate Tribunal, Chennai. In order to facilitate the
petitioner to approach that Tribunal, stay was against
hading over possession of the property in question for a
period of 10 days.
3. The auction purchaser had now filed an
impleading petition which is allowed, and he is impleaded
as Additional 7th respondent. It is submitted by the learned
counsel appearing for the 1st respondent Bank as well as the
learned senior counsel appearing for the Additional
7th respondent that the entire sale consideration pursuant to
the auction has already been deposited. It is pointed out
that by virtue of Rule 9 (6) & (9) of the Security Interest
(Enforcement) Rules, 2002 the authorised officer is bound
to issue sales certificate and to deliver possession of the
property, immediately on the remittance of the entire
purchase amount by the auction purchaser. It is further
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pointed out that in view of Section 17 (3) of the SARFAESI
Act if the DRT finds that any measures taken by the Bank
referred to under Section 13 (4) are not taken in
accordance with the provisions, the DRT can order that the
possession handed over to the auction purchaser is invalid
and can order restoration of possession to the secured
creditor or to the owner of the property. It is contended
that in view of the above said provisions there is no
justification in keeping transfer of actual possession
pending, on the ground that the petitioner had preferred
appeal against Ext.P2 order.
4. Having confronted with the above situation, the
learned senior counsel appearing on behalf of the
petitioner, fairly conceded that, the petitioner can agitate
the appeal before the appropriate Appellate Tribunal and
his right need only to be protected in view of the provisions
contained in Section 17 (3) of the Act.
5. Under the above circumstances the Writ Petition
is dismissed without prejudice to rights of the petitioner to
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persue the appeal field against Ext.P2 before the Appellate
Tribunal having jurisdiction. It is made clear that the
Appellate Tribunal shall consider and dispose of the appeal
on its merit, untrammelled by any of the observations made
above.
C.K. ABDUL REHIM
JUDGE
shg/