IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 OP (DRT).No. 132 of 2011(O) --------------------------- OA.22/2005 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER: ------------------ SULFI NAZAR, PLAVILA PUTHENVEEDU, EDAVA, THIRUVANANTHAPURAM-695 311. BY ADV. SRI.SANTHAN V.NAIR SRI.V.V.MITHUN RESPONDENTS: ---------------------- 1. THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL (KERALA & LAKSHADWEEP) 8TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR P.O., ERNAKULAM, PIN-683 036. 2. THE MANAGER, FEDERAL BANK LTD., EDAVA BRANCH, EDAVA P.O., THIRUVANANTHAPURAM, PIN-695 311. 3. HARICHANDRAN PILLAI, S/O.JANARDHANAN PILLAI, VISHNU BHAVAN, KOCHALAMMOODU, EDAVA P.O., THIRUVANANTHAPURAM, PIN-695 311. ADV. SRI.K.B.PRADEEP FOR R3 SRI.GEORGE VARGHESE (MANACHIRACKEL) FOR R2 THIS OP (DEBT RECOVERY TRIBUNAL) HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. = = = = = = = = = = = = = = OP(DRT).No.132 of 2011-O. = = = = = = = = = = = = = = Dated this the 31st January, 2011. J U D G M E N T Petitioner is the first defendant in OA.No.22/2005 on the file of the Debt Recovery Tribunal, Ernakulam. The Recovery Certificate issued in that case was sought to be executed through proceedings initiated by the first respondent as DRC.No.1995. The said OA was filed by the 2nd respondent for realising the loan amounts availed by the petitioner and others. In the execution proceedings, immovable property having an extend of 18.30 cents along with a residential building was sold by the 1st respondent in public auction, to the 3rd respondent. Petitioner and others have challenged the sale before the 1st respondent through a petition filed under Rule 60 of the Schedule to the Income Tax Rules. The said application was dismissed by the 1st respondent, against which the petitioner filed appeal before the Debt Recovery Tribunal as Appeal No.9/2009. Initially the Tribunal passed an ad-interim stay as evidenced from OP(DRT).No.132 of 2011-O. 2 Ext.P1, subject to condition of the petitioner remitting the amounts specified in the proclamation of sale together with interest prescribed under the relevant Statute. Accordingly the petitioner made remittance of the amount through Ext.P2 Demand Draft, receipt of which was acknowledged through Ext.P3. It is stated that the said deposit is still remaining with the first respondent. Subsequently the appeal was dismissed by the Debt Recovery Tribunal, against which the petitioner approached the Debt Recovery Appellate Tribunal, Chennai (DRAT) by filing M.A.No.146/2009. It is stated that the Appellate Tribunal had granted an interim stay at the initial stage. But subsequently the MA was dismissed for default. On dismissal of the appeal by the DRAT, the first respondent issued Ext.P4 notice directing the petitioner to vacate the scheduled property and the building situated therein. Meanwhile, it is stated that, on the basis of an application filed by the petitioner, the Appellate Tribunal had restored the appeal. It is mentioned that on receipt of Ext.P4, the OP(DRT).No.132 of 2011-O. 3 petitioner filed Ext.P5 application before the first respondent requesting to appropriate the amount in deposit and to restrain from further steps for evicting the petitioner. It is the grievance of the petitioner that in spite of Ext.P5 the 1st respondent is proceeding with further steps, without considering pendency of the appeal before the Appellate Tribunal. 2. Heard, counsel for the petitioner as well as counsel appearing for respondent 2 and 3. It is conceded by both sides that the DRAT, Chennai had conducted final hearing on the appeal (MA.No.146/2009), on 9.1.2011 and the matter now stands reserved for pronouncing orders. Under the above mentioned circumstances, petitioner contents that, if any further coercive steps is taken by the first respondent before pronouncing orders by the Appellate Tribunal, that will cause irreparable injury and loss to him. Hence the petitioner seeks direction from this Court to restrain delivery of possession of the property and all further steps till orders are pronounced by the Appellate OP(DRT).No.132 of 2011-O. 4 Tribunal. 3. The prayer as above was opposed by the 3rd respondent contending that there was deliberate attempt on the part of the petitioner in protracting the matter. It is stated that, even after restoration of the appeal, several adjournments were sought for on behalf of the petitioner. However, it is conceded that the matter now stands posted for pronouncing orders. 4. Per contra, learned counsel for the petitioner submitted that the amount in deposit is in excess of the sale amount by a sum of Rs.1.47 lakhs and the petitioner has already expressed his willingness to appropriate the excess amounts as compensation payable to the 3rd respondent. It is pointed out that, by setting aside the sale no prejudice will be caused to the 3rd respondent. 5. Considering pendency of the matter before the Debt Recovery Appellate Tribunal, I am of the view that it is not proper or justified on the part of this Court to consider merits of the case for setting aside the sale. However, since OP(DRT).No.132 of 2011-O. 5 it is brought to my notice that the Appellate Tribunal had already reserved the matter for pronouncing orders, I am of the view that the interest of justice will be served if the first respondent is directed to keep in abeyance further steps for effecting delivery of the property for a reasonable period. 6. Under the above circumstance the writ petition is disposed of directing the first respondent to keep in abeyance all further steps pursuant to the sale in question for a period of six weeks or till the Appellate Tribunal pronounces orders on the appeal in question, whichever is earlier. Needless to say that further steps can be proceeded depending on the outcome of the decision from the Appellate Tribunal. C.K.ABDUL REHIM, (Judge) Kvs/-