IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 RSA.No. 461 of 2010() --------------------- AS.374/2008 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.29/2006 of II ADDL.M.C., ERNAKULAM .................... APPELLANT/PLAINTIFF: --------------------------- M/S. NEDUMPILLIL CHITS & FINANCE PVT. LTD., DOOR NO.2/1114, KOOTHATTUKULAM DESOM AND VILLAGE, MOOVATTUPUZHA TALUK PIN - 686662, REPRESENTED BY ITS MANAGING DIRECTOR N.A ISSAC, S/O. N.I.ABRAHAM, AGED 53 YEARSM CHATHANTHADATHIL HOUSE, EDAYAR P.O., KOOTHATTUKULAM PRESENTLY NEDUMPILLIL FINANCE CO.LTD. BY ADV. SRI.ABRAHAM JOHN RESPONDENTS/DEFENDANTS: ---------------------------------- 1. SEBASTIAN VARGHESE, S/O. K.P. VARGHESE, MANAGING DIRECTOR OF M/S. KOLUTHARA WORLD TRADE PVT LTD AND MANAGING PARTNER OF M/S. JYOTHI OIL STORES, KOLUTHARA BUILDING, BROADWAY, ERNAKULAM AND RESIDING AT 76, KUMARANASAN NAGAR, KADAVANTHRA, KOCHI - 20. 2. BEENA SEBASTIAN, W/O.SEBASTIAN VARGHESE, DIRECTOR OF M/S.JYOTHI OIL STORES, KOLUTHARA BUILDING, BROADWAY, ERNAKULAM, AND RESIDING AT 76, KUMARANASAN NAGAR, KADAVANTHRA, KOCHI -20. 3. THE FEDERAL BANK LTD, REGD OFFICE, AT ALUVA HAVING ITS BRACH AT M.G ROAD, OPPOSITE MAHARAJAS COLLEGE GROUND, ERNAKULAM RE.P. BY ITS MANAGER. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------- R.S.A. No.461 of 2010 -------------------------- Dated this the 19th May, 2010 J U D G M E N T Three persons approached the trial court claiming rights under Section 56 of the Transfer of Property Act, 1882. The trial court found that the 3rd respondent in this appeal had already approached the Debt Recovery Tribunal for appropriate reliefs. The court below then took the view that in the light of Sections 17 and 18 of Recovery of Debts due to Banks and Financial Institutions Act 1993 (hereinafter referred to as Act "57 of 1993") the suit could not be maintained. Accordingly the suit was dismissed. All the three plaintiffs before the trial court carried the matter in appeal before the District Court, Ernakulam. The District Court concurred with the findings of the trial court and dismissed the appeal. One among the appellants i.e in A.S No.374 of 2008 before the District Court has come up with this Second Appeal. 2. Learned counsel appearing for the appellant contended that the courts below were not justified in dismissing the suit on the ground that the matter is R.S.A. No.461 of 2010 2 pending before the Debt Recovery Tribunal. According to the learned counsel, the Debt Recovery Tribunal is incompetent to pass orders based on Section 56 of the Transfer of Property Act, 1882 and therefore the suit ought to have been entertained and disposed of on merits. 3. There is no basis for the above contention at all. There is nothing to indicate now that the appellant has preferred necessary claims before the Debt Recovery Tribunal. It must be noticed that the mortgagee bank has made the appellant also as a party to the Debt Recovery Tribunal. The embargo under Sections 17 and 18 of the Act 57 of 1993 is absolute. There is no reason to believe that the Debt Recovery Tribunal will not consider the claim of the petitioner, if raised, in accordance with law. The court below has observed so. 4. The apprehension of the appellant that the Tribunal will not consider the claim is without any basis. It must be noticed that the benefit available under Section 56 of Transfer of Property Act cannot be considered in isolation. The liability of the mortgagor will have to be R.S.A. No.461 of 2010 3 determined. So also the ingredients necessary to attract the said provision will also have to be established. The Civil Court cannot usurp those functions which fall within the exclusive jurisdiction of the Tribunal. As already noticed the Act 57 of 1993 has overriding effect. No grounds are made out to interfere with the court below and accordingly, in limine it is dismissed. P.BHAVADASAN, JUDGE ma R.S.A. No.461 of 2010 4 R.S.A. No.461 of 2010 5