IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 8568 of 2009(M) ------------------------------------ PETITIONER(S): ------------------------ P.K.RAJEEVAN, RADHA VIHAR, NETAJI ROAD, CHIRAKKARA, THALASSERY, KANNUR DISTRICT. BY MR.M.K.DAMODARAN, SENIOR ADVOCATE BY ADVS.MR.P.K.VIJAYAMOHANAN MR.ALAN PAPALI MR.GILBERT GEORGE CORREYA MR.NISHIL.P.S. RESPONDENT(S): ------------------------- 1. THE INDIAN BANK, HEAD OFFICE, 66 RAJAJI, SALAI, CHENNAI-600 001, REPRESENTED BY ITS GENERAL MANAGER. 2. THE CHIEF MANAGER & AUTHORISED OFFICER, INDIAN BANK CIRCLE OFFICE, CHITTOOR ROAD, PULLEPPADY JUNCTION, ERNAKULAM, KOCHI-682 035. 3. THE MANAGER, INDIAN BANK, CHALAI BRANCH, ARYASALA, THIRUVANANTHAPURAM-695036 BY ADV. MR.S.EASWARAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 8568 OF 2009 ............................................ DATED THIS THE 31st DAY OF MARCH, 2009 JUDGMENT The petitioner is an erstwhile employee of the first respondent, he having been dismissed from service, following disciplinary proceedings. He had availed a housing loan from the first respondent. For that purpose, he had created a security interest in the form of a mortgage. The petitioner is prepared to pay off the entire amounts due to that loan and thereby close it. Obviously, therefore there could be no SARFAESI Act proceedings against that property. It is recorded that the petitioner will pay the entire amounts due to the first respondent within a period of one month from now. This submission is recorded and it is ordered that if the loan transaction is closed thereby, the bank will drop any recovery proceedings on that basis including under SARFAESI Act and would then be duty bound to release the documents deposited to create the mortgage. 2. It appears that the petitioner is accused of having defrauded the first respondent and on such allegation, the first WP(C) 8568/2009 2 respondent has filed O.A. 189 of 2005 before the Debt Recovery Tribunal for recovery of the amounts stated to have been fraudulently misappropriated. In fact the allegation appears to be unauthorised creation of banking documents and raising of two deposits, which ultimately the bank had returned to the persons in whose name, the deposits were raised. Whatever that be, one of the fundamental issues that may arise for decision in that case is as to whether O.A.189 of 2005 is sustainable and maintainable in an application for recovery of debt under RDB Act, having regard to the sweep of the definition of the term `debt' under that Act. However, it is pointed out that by orders in I.A.1888 of 2008, the petitioner herein is restrained from encumbering or alienating the property in question and that such status quo is being maintained. If that were so, it is necessarily required that Tribunal hears the parties on the question of maintainability of the O.A and also on the question as to whether the attachment is to continue or not. There cannot be any delay in the matter. 3. While this court was quite conscious of the work load of Debt Recovery Tribunal(K & L), which is now manned by a single Presiding Officer, having regard to the peculiar facts and WP(C) 8568/2009 3 circumstances, it is appropriate in the interest of the bank as also the petitioner that Debt Recovery Tribunal hears the parties on the question of maintainability of O.A.189 of 2005 as an application under the RDB Act and render a decision at the earliest. Since the petitioner has offered to pay the amounts due under the loan account, within a period of one month, Debt Recovery Tribunal will make an endeavour to decide on the aforesaid issue within one month from the date of receipt of a copy of this judgment. The parties are directed to mark their appearance before the Debt Recovery Tribunal on 6.4.2009, so that the Tribunal can fix appropriate date for hearing the parties and treat this case out of turn. Writ petition ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/31/3