IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 14854 of 2008(R) -------------------------- DRC.2736/2002 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER(S): --------------- ABDU RAHIMAN, S/O.LATE MOHGAMMED KUTTY, KADEEJA MANZIL, CHALIYAM POST, KOZHIKODE DIST, KERALA STATE-673 301. BY ADV. SRI.G.PRABHAKARAN RESPONDENT(S): --------------- 1. CENUTRY TEXTILES, MAIN ROAD, KONDOTTY, KOZHIKODE DIST, REP.BY ITS MANAGING PARTNERM M.S.SHAMSUDEEN @ MELEVEETTIL SHAMSUDEEN, S/O.M.S.MOHAMMED KOYA, KADAKKATHODI HOUSE, CHALIYAM PO, MALAPPURAM DIST. 2. M.S.SHAMSUDEEN @ MELEVEETTIL SHAMSUDEEN, S/O.M.S.MOHAMMED KOYA, KADAKKATHODI HOUSE, CHALIYAM PO, KOZHIKODE DIST. 3. P.K.NASEEBA, W/O.SHAMSUDEEN, KADAKKATHODI HOUSE, CHALIYAM PO, KOZHIKODE DIST. 4. K.SIYALIKOYA, NAH'S , CHALIYAM, KOZHIKODE DIST. 5. K.BEEPATHU, W/O.MOHAMMED KUTTY, KADEEJA MANZHIL, P.O, CHALIYAM, KOZHIKODE DIST. 6. ABOOBACKER KOYA, S/O.MOHAMMED KUTTY, KADEEJA MANZIL, CHALIYAM PO, KOZHIKODE DIST. 7. AYISHA.E, D/O.MOHAMMED KUTTY, KADEEJA MANZIL, CHALIYAM PO, KOZHIKODE DIST. WP(C).14854/08 2 8. RUKIYA, D/O. MOHAMMED KUTTY, KADEEJA MANZIL, CHALIYAM PO, KOZHIKODE DIST. 9. UMMACHA BEEVI, D/O.MOHAMMED KUTTY, KADEEJA MANZIL, CHALIYAM .PO,KOZHIKODE DIST. 10. SHEREFA, D/O.MOHAMMED KUTTY, KADEEJA MANZIL, CHALIYAM PO, KOZHIKODE DIST. 11. ABDUL MAJEED, S/O.MOHAMMED KUTTY, KADEEJA MANZIL, CHALIYAM PO, KOZHIKODE DIST. 12. ABDUL RAZAK, S/O.MOHAMMED KUTTY, KADEEJA KADEEJA MANZIL, CHALIYAM PO, KOZHIKODE DIST. 13. BENASER.I, D/O.MOHAMMED KUTTY, KADEEJA MANZIL, CHALIYAM, PO, KOZHIKODE DIST. 14. SAINABA.P, W/O.M.S.MOHAMMED KOYA, KADUKATHODI HOUSE, PO, CHALIYAM, KOZHIKODE DIST. 15. AYISHA M.S., D/O.M.S.MOHAMMED KOYA, KADUKATHODI HOUSE, PO.CHALIYAM, KOZHIKODE DIST. 16. MEHARUNNISA, M.S., D/O.M.S.MOHAMMED KOYA, KADUKKATHODI HOUSE, CHALIYAM PO, KOZHIKODE DIST. 17. NAJAMUNNISA.M.S., D/O.M.S.MOHAMMED KOYA, KADUKKATHODI HOUSE, CHALIYAM PO, KOZHIKODE DIST. 18. FAISAL.M.S., S/O.M.S.MOHAMMED KOYA, KADUKKATHODI HOUSE, CHALIYAM PO, KOZHIKODE DIST. 19. MOHAMMED RAFI.M.S., S/O.M.S.MOHAMMED KOYA, KADUKKATHODI HOUSE, CHALIYAM PO, KOZHIKODE DIST. 20. OFFICE OF THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL(KERALA & LAKSHADWEEP) 8TH FLOOR, KSHB BUILDING PANAMPILLY NAGAR, COCHIN- 682 036. WP(C).14854/08 3 21. PUNJAB NATIONAL BANK, VAZHAKKAD BRANCH, VATTAPARA BUILDING, EDAVANAPPARA, CHERUVAYOOR PO, MALAPPURAM DIST. 22. MRS.AMINA MANALODI, D/O.AHAMMED KOYA, FAROOK VILLAGE, NALLOOR DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 23. MANI ATHRAPULICKAL, S/O.MANUKUTTAN, KADALUNDI 673 302. R4 TO R13 BY ADV. SMT.E.V.MOLY R3, R15 TO R17, R19 BY ADV.SRI.SUNIL V.MOHAMMED R21 BY ADV.SRI.K.P.SUDHEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.14854/08 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE FINAL ORDER DATED 9.4.2007 IN O.A.367/02 PASSED BY THE LEARNED TRIBUNAL. EXT.P2: A TRUE COPY OF THE REQUEST DATED 20.5.07 MADE BY THE PETITIONER TO THE BANK. EXT.P3: A TRUE COPY OF THE SAID LAWYER NOTICE DATED 2.7.2007. EXT.P4: A TRUE COPY OF THE SAID REQUEST DATED 11.1.2008. EXT.P5: A TRUE COPY OF THE NOTICE FOR SETTLING SALE PROCLAMATION. EXT.P6: A TRUE COPY OF THE OBJECITON TO P5 NOTICE. EXT.P7: TRUE COPY OF THE CERTIFIED COPY OF COMPROMISE FILED BEFORE THE DRT BY THE APPLICANT BANK. EXT.P8: TRUE COPY OF THE COMPLAINT PREFERRED TO THE COMMISSIONER OF POLICE, ERNAKULAM. RESPONDENTS' EXHIBITS: EXT.R21(a): TRUE COPY OF NOTICE ON DEMAND TO THE CERTIFICATE DEBTORS (DRC NO.2736/PNB/MLP) DATED 17.7.2007 ISSUED BY THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.14854 OF 2008 ------------------------------------------- Dated this the 29th day of January, 2009 JUDGMENT 1. The second respondent is stated to be the principal debtor in a transaction provided by the 21st respondent, which ultimately led to issuance of Ext.P1 final order by the Debts Recovery Tribunal on 9.4.2007, acting on a promise stated to have been drawn up by parties to that litigation. The petitioner and those who support him from the array of respondents take the stand that they were duped in the matter when pending before the DRT and their signatures were forged and the alleged compromise and further proceedings were carried out in a fraudulent manner. 2. On the basis of the compromise and Ext.P1 final order, certain documents were to be released. Taking into consideration the amounts already deposited pursuant thereon, it is stated that certain documents were released by the bank, in consonance with Ext.P1 order, to the principal debtor. The arrangement WPC.14854/08 Page numbers appears to be, going by what is stated in Ext.P1, that, utilising those document, debtors would generate further amounts and satisfy the dues to the bank within the time frame as stipulated therein. Otherwise, the bank was entitled to obtain a recovery certificate and proceed accordingly. 3.On default in payment, following Ext.P1, the bank has obtained a recovery certificate and is proceeding against the debtors for recovery. In terms of Ext.P1, it is categoric that the bank can proceed against all or any among the debtors jointly and severally. With the passage of time, it is inappropriate to entertain, that too, in writ jurisdiction, a complaint that the transaction before the DRT was fraudulent and still further, that the creditor bank has to trace out the property which has been released and proceed against that item first, without proceeding against the properties of the petitioner. It may be true that the petitioners and those among the respondents who support the petitioner may have their remedies against any of the other parties, including the second respondent, who is WPC.14854/08 Page numbers stated to have duped them. But that is insufficient for the writ jurisdiction to be exercised to challenge proceedings against the petitioner. 4.For the aforesaid reasons, without prejudice to the right, if any, of the petitioner to proceed against any among the private respondents other than the bank, this writ petition is dismissed. It is also clarified that since the petitioner appears to state that he has a case that Ext.P1 was fraudulently obtained, his right, if any, to challenge the same before any appropriate authority, including the Debts Recovery Appellate Tribunal, in accordance with law, is left open. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.