IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 28812 of 2008(E) -------------------------- AGAINST THE ORDER IN OA 123/1998 IN RA.54/2005 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONERS: ---------------------- 1. K.C. THOMAS, NO. 58, PANAMPILLY NAGAR, ERNAKULAM, KOCHI-16. 2. THOMAS K. CHANDY, NO. 58G, PANAMPILLY NAGAR, ERNAKULAM, KOCHI -16. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT: ----------------------- THE SOUTH INDIA BANK LTD., BANERJI ROAD, ERNAKULAM. ADV. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BANK FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss Thottathil B. Radhakrishnan, J. ================================== W.P.(C)No.28812 of 2008 ================================== Dated this the 6th day of October, 2008. JUDGMENT The first respondent sued the petitioners and others under the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, hereinafter referred to as the “RDB Act” and obtained a recovery order. The debtors challenge that order before the DRAT, which interfered with the recovery order passed by the Tribunal to some extent. Aggrieved by the reduction in the total outstandings, the bank filed WP(C)No.10917 of 2006 challenging the decision of the DRAT. Nonetheless, it also gave effect to the appellate order by moving the DRT for a recovery certificate in terms of the DRAT's order so that actual recovery of amounts covered by the appellate order can be expedited. The petitioners, two among the debtors, have instituted WP(C)No.28812 of 2008 stating that WPC28812/08 -:2:- the recovery certificate could be issued only after the adjudication of WP(C)No.10917 of 2006. In other words, the contention is that recovery certificates cannot be issued on a piecemeal basis and a second recovery certificate referable to the same debt is not contemplated by the RDB Act. Even I were to take the argument on its face value, all that could happen is that WP(C)No.10917 of 2006 could be contested on that ground and if the debtors succeed in sustaining such an argument in law, may be, this Court could proceed to decide WP (C)No.10917 of 2006 against the bank. But that cannot, in any manner, impair the execution or enforcement of the recovery proceedings on the basis of the order of the DRAT to the extent it has become final as against the debtors. 2. With the aforesaid situation, WP(C) No.28812 of 2008 is only to be dismissed without prejudice to and with liberty to the respondents in WPC28812/08 -:3:- WP(C)No.10917 of 2006 to raise all grounds in opposition to that writ petition, including the question whether the issuance of recovery certificate and its enforcement as is being done by the bank, as of now, would be a ground to dismiss WP(C)No.10917 of 2006. Hence, preserving that right, WP(C)No.28812 of 2008 is dismissed. 3. Having done so, it needs to be considered whether any further enforcement of the recovery certificate and proceedings before the DRT needs to be deferred, having regard to the suggestion on behalf of the debtors that an amount of Rs.3 lakhs will be paid within one month. It is directed that if such amount is paid, the distress action will stand deferred for a period of two months from now to enable the debtors to negotiate with the bank if permissible and if such negotiation appeals to the commercial sense of the bank, the pendency of WP(C) No.10917 of 2006 will not stand in the way of the WPC28812/08 -:4:- parties settling the matter out of court. For the sake of continuity, the office will maintain a copy of this judgment among the Judges Papers in WP(C) No.10917 of 2006. Writ petition ordered accordingly. Thottathil B.Radhakrishnan, Judge. sl.