IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 OP (DRT).No. 3611 of 2011(O) ------------------------------------ OA.1573/1998 of DEBT RECOVERY APPELLATE TRIBUNAL, CHENNAI .......................................................................................................... PETITIONERS ---------------- 1. JOY THOMAS, AGED 56 YEARS,S/O.THOMAS, POST BOX NO.4489,ERNAKULAM NORTH P.O.,KOCHI-682 018 2. DILFINA JOY, W/O.JOY THOMAS, AGED 49 YEARS, POST BOX NO.4489,ERNAKULAM NORTH P.O KOCHI-682018 3. SMT.V.S.MARY, AGED 76 YEARS, KOLENCHERRY HOUSE, MATHILAKAM P.O., KODUNGALLOORE,THRISSUR DIST BY ADV. SRI.MATHEW SEBASTIAN RESPONDENTS: ------------------ 1. STATE BANK OF INDIA, COCHIN-1 BRANCH REP.BY HCIEF MANAGER C & 1 DIVISION, FORT KOCHI-682 001 2. THE DEBT RECOVERY APPELLATE TRIBUNAL CHENNAI,REPRESENTED BY REGISTRAR,PIN-600 001 3. THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, ERNAKULAM, PIN-682036 ADV. SRI.GEORGE THOMAS (MEVADA), SENIOR ADVOCATE FOR R1 SRI.MANU GEORGE KURUVILLA FOR R1 SRI.AMAL GEORGE FOR R1 THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (DRT).No. 3611 of 2011(O) APPENDIX PETITIONERS EXHIBITS EXT. P1: COPY OF ORDER IN OA.1573/1998 OF THE DEBT RECOVERY TRIBUNAL ,ERNAKULAM EXT. P2: COPY OF LETTER DATED 17/7/2003 OF THE IST RESPONDENT BANK EXT. P3: COPY OF THE LETTER DATED 21/8/2003 OF THE IST RESPONDENT BANK EXT. P4: COPY OF RECEIPT DATED 10/1/2007 EXT. P5: COPY OF JUDGMENT IN WPC.33328/2006 DATED 27/5/2009 EXT. P6: COPY OF PAPER PUBLICATION DATED 9/11/2009 EXT. P7: COPY OF JUDGEMENT IN WPC.36086/2009 DATED 15/12/2009 EXT. P8: COPY OF APPEAL MEMO DATED 1/3/2010. EXT. P9: COPY OF APPLICATION IN IA 446/2010 DATED 1/3/2010. EXT.P10: COPY OF ORDER DTD 19/3/2010 IN IA.446/2010. EXT.P11: COPY OF ORDER DATED 21/3/2011. EXT.P12: COPY OF ORDER DATED 13/09/2011 IN IA.446/2011 IN AIR 219/2010 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE dlk S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P (DRT) No. 3611 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 14th day of November, 2011. J U D G M E N T Against Ext.P1 order dated 25.2.2000 in O.A.No. 1573/98 before the Debt Recovery Tribunal, Ernakulam, the petitioners filed an appeal before the Debt Recovery Appellate Tribunal, Chennai along with a petition to condone delay of 3609 days in filing the same. By Ext.P12 order, the appellate tribunal dismissed the appeal refusing to condone the delay of 3609 days. Ext.P12 order is under challenge in this writ petition. 2. The petitioners contend that Ext.P1 order was passed without affording the petitioners an opportunity of being heard. The petitioners would submit that although the petitioners filed writ petitions before this Court, viz. W.P(C) Nos. 33328/2006 and 36086/2009, which were subsequently dismissed, this Court should interfere and do justice to the petitioner insofar as there are very serious contentions raised and the delay of 3609 days should be condoned taking a lenient view. In support of the petitioners' contention, the petitioners rely on the decision of the Supreme Court in State of Karnataka v. Y. Moideen Kunhi (dead) by Lrs. & Ors, AIR 2009 S.C. 2577 and N. Balakrishnan v. M.Krishnamurthy, (1998) 7 SCC 123 contending that in view of those decisions, notwithstanding the long delay, the DRAT should have taken a lenient attitude in condoning the delay insofar as the petitioners have not been given a reasonable opportunity before passing Ext.P1 order. The petitioners seek the following reliefs: O.P (DRT) No. 3611 of 2011 -: 2 :- “a. issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P12 order of the 2nd respondent in I.A.446/2010 in AIR 219/2010 and allow the same; b. issue a writ of mandamus or any other appropriate writ, order or direction, ordering the 2nd respondent to consider Appeal AIR 219/2010 on merits.” 3. Counsel for the bank would contend that it is not as if the petitioners were not aware of Ext.P1 order. In fact, the O.A was filed by the bank before the Debt Recovery Tribunal for a recovery certificate for recovery of the decree passed by the sub court in O.S.No. 154/96. In that O.S, the petitioners who were the defendants appeared and withdrew all their contentions and it is pursuant to that the decree was passed. Therefore, the petitioners cannot now argue against implementation of the decree, is the contention raised. It is further contended that apart from W.P(C) Nos. 33328/2006 and 36086/2009, the petitioners had earlier filed O.P.No. 35791/2002 also, which was also dismissed. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the counsel for the bank, it is not as if the petitioners came to know about Ext.P1 order recently. The petitioners were all along aware of the passing of Ext.P1 order. In fact, in respect of the proceedings the petitioners filed three writ petitions, viz. O.P. No. 35791/2002, and W.P(C) Nos. 33328/2006 and 36086/2009. That being so, the petitioners have not given O.P (DRT) No. 3611 of 2011 -: 3 :- any sufficient reason for applying the principles laid down in the decisions quoted by them in favour of the petitioners to the facts of this case insofar as knowing fully of the existence of Ext.P1 order, they had delayed filing the appeal. In the meanwhile, they approached this Court three times and in all those writ petitions, the petitioners were not able to obtain any favourable orders and all of them were dismissed. In fact, the petitioners have never challenged the decree passed in the O.S for recovery of the amount, as per which the bank has filed the O.A before the Debt Recovery Tribunal . For all the above reasons, I do not find any merit in the challenge against Ext.P12 order. Even otherwise, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioners in view of the facts disclosed and narrated above. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/