IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WP(C).No. 2739 of 2008(A) --------------------------------------- PETITIONER: ------------ BASHEER M.PICHA, S/O. MYTHEEN PICHA, BAINDS, LATEX ROAD, ULAMPURA, PEROORKADA, THIRUVANANTHAPURAM, PRESENTLY RESIDING AT VILLA NO.981, ROAD 5024, BLOCK 950, ASKAR, BAHRAIN, REPRESENTED BY THE POWER OF ATTORNEY HOLDER PUTHUVEETIL ABDULLA FAISAL, AGED 31,S/O.ABDULLA, RESIDING AT PUTHUVEETTIL HOUSE, PUTHIYANGADI P.O.,NATTIKA BEACH,THRISSUR. BY ADV. SRI.A.V.THOMAS SMT. NIDHI SAM JOHN RESPONDENTS: -------------------------- 1. INDIAN BANK, SHANMUGHAM ROAD BRANCH, ERNAKULAM, PIN-682 031, REPRESENTED BY THE BRANCH MANAGER. 2. THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL, ERNAKULAM. BY SRI. P. PARAMESWARAN NAIR, ASST.SOLICITOR BY SRI. S.EASWARAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.2739 OF 2008 ---------------------------------------- Dated this the 28th day of January, 2008 JUDGMENT The petitioner is the judgment debtor in O.A. No.K 23 of 1999 before the Debt Recovery Tribunal, Ernakulam which arises in execution of the decree in O.S. No. 816 of 1995 of the II Additional Sub Court, Thiruvananthapuram. That decree was an ex-parte decree for payment of an amount of Rs.58,07,134.05/ with interest at the rate of 23.25% with quarterly rests from the date of suit till realisation of the amount. The petitioner has filed an application for setting aside the ex-parte decree and also a petition for stay of sale of the mortgaged property in execution of the decree by the 2nd respondent. The petitioner submits that he is disabled to move the Tribunal for appropriate orders because the Presiding Officer of the Tribunal is on leave. Another Presiding Officer having additional charge is only dealing with urgent matters and as such if the sale which is now scheduled to be held on 5.2.2008, takes place the petitioner would be put to irreparable loss and damages. The petitioner further submits W.P.(c)No.2739/08 2 that the Tribunal has posted the I.A. for setting aside the ex- parte decree, for hearing on 29.2.2008. He seeks a stay of further proceedings for sale till the same is considered on 29.2.2008. 2. This is stoutly opposed by the learned counsel for the 1st respondent bank. He would submit that it is with great difficulty that the property has been ultimately brought to sale and the bank has already identified three prospective purchasers and if the sale is further adjourned, the purchasers are likely to back out. He has also got a contention that the bank is also ready to purchase the property in auction to be conducted by the 2nd respondent – Recovery Officer. He therefore submits that this Court shall not interfere in the matter at this stage. The counsel for the bank also submits that the Tribunal can be directed to consider the matter either on 29.1.2008 or 20.1.2008 on which days the presiding officer having additional charge is sitting. 3. I have considered the rival contentions in detail. I am of opinion that a party should not be prejudiced because of the fact that the presiding officer of the Tribunal is on leave and therefore the Tribunal is unable to consider his application W.P.(c)No.2739/08 3 for setting aside the ex-parte decree, notwithstanding the fact that the same has been filed after about 10 years. Therefore I feel that the sale can be directed to be adjourned on conditions and the Tribunal can be directed to hear and dispose of the application to set aside the ex-parte decree on date of posting on 29.2.2008. 4. Accordingly, the writ petition is disposed of with the following directions: The petitioner shall deposit with the 2nd respondent an amount of Rs.1.5 crores on or before 28.2.2008. The Tribunal shall consider and pass appropriate orders on I.A.Nos.1491 and 1492/2007 on 29.2.2008 itself. The sale shall stand adjourned till 29.2.2008. Further proceedings for sale shall be in accordance with the orders to be passed on the I.As filed by the petitioner pursuant to the hearing to be conducted on 29.2.2008. If the amount is not deposited as directed above, the Tribunal is free to consider the petitions in due course and the sale proceedings can go on. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.2739/08 4