IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 WP(C).No. 3578 of 2008(A) ------------------------- OA.131/2007 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER: ------------------ 1. N.A. SALEEM, S/O. MOOSSA ABDUL REHMAN, PROP. IRIS COLOUR PALACE, M.G.ROAD, TRICHUR, RESIDING AT KOLADI HOUSE, NALAKATH VADAKKAYIL, VADANAPPALLY, TRICHUR. 2. R.V. MOHAMMED AYOOB, S/O.IZZAKKUTTY HAJI RAYMARAKKAR VEETTIL, PAVARTTY P.O., TRICHUR. 3. IZZATH AYOOB, W/O.R.V.MOHAMMED AYOOB, RAYMARAKKAR VEETTIL, PAVARTTY P.O., THRISSUR. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENTS: --------------------- 1. STATE BANK OF TRAVANCORE, THRISSUR MAIN BRANCH, THRISSUR. 2. THE RECOVERY OFFICER, OFFICE OF RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL (KERALA & LAKSHDWEEP), 8TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, KOCHI. R1 BY ADV.SRI.SAJI VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thottathil B. Radhakrishnan, J. ================================== W.P.(C)No.3578 of 2008 ================================== Dated this the 30th day of January, 2008. JUDGMENT Petitioners availed a loan from the first respondent. This resulted in the proceedings before the Debts Recovery Tribunal. Later, proceedings were initiated under the SARFAESI Act. Challenging the proceedings under the SARFAESI Act, the first petitioner filed WP(C)No.28024 of 2007. An interim order was issued in that case on 20-9- 2007 directing stay of further proceedings under the SARFAESI Act if an amount of Rs.5,00,000/- is deposited in two instalments. That order was not complied with. Obviously, SARFAESI Act proceedings and proceedings before the DRT under the Recovery of Debts due to Banks and Financial Institutions Act do not conflict. Noticing that even the interim order was not complied with in that case WP (C)No.28024 of 2007 was dismissed holding that WPC3578/2008 -:2:- there is no jurisdictional error or legal infirmity. That judgment was issued on 11-1-2008. Thereafter the recovery officer of the DRT brought the property to sale. The writ petition in hand is filed contending that the petitioners have applied to the DRT to set aside the recovery order which is stated to be ex-parte. They have filed an application to condone the delay in applying to set aside that ex-parte order. 2. I have perused the copies of those interlocutory applications stated to have been filed before the DRT. The only plea on facts reflected therein is as to whether the guarantors could be proceeded against or whether the action against them is barred by limitation. According to the petitioners, the O.A., as against the guarantors, was time barred. The fact remains that the recovery order is supported by charge on the basis of mortgages. WPC3578/2008 -:3:- 3. Having gone through the entire materials and having heard the learned counsel for the petitioners and the Bank quite in extenso, I find that the petitioners could not, in any manner, dislodge the right of the Bank to recover the amounts at least to the extent of the principal reasonable interest by proceeding against the mortgage. Even if I am to exclude the entire interest portion, the remaining amounts will work out to around Rupees twenty six lakhs. Petitioners cannot find any way to exclude the sale proceedings under such circumstances. Having thus found no jurisdictional error or legal infirmity in the impugned proceedings, it is directed that if the petitioners deposit Rupees fifteen lakhs within a period of three weeks and a further amount of Rupees ten lakhs within another three weeks, the impugned sale proceedings will stand deferred till consideration of the interlocutory applications WPC3578/2008 -:4:- filed by the petitioners before the Debts Recovery Tribunal for setting aside ex-parte final order and for condoning the delay in applying to file such application. The opportunity extended hereby is a last opportunity to avert the sale and if there is any failure on the part of the petitioners to deposit the amounts as aforesaid, the benefit of this judgment will stand recalled automatically and the respondents will be at liberty to forthwith proceed with distress action. Writ petition is disposed of in the above terms. Thottathil B.Radhakrishnan, Judge. sl.