IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 WP(C).No. 30148 of 2007(L) ------------------------------------- OA.140/2007 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONERS: ------------------ 1. M/S. SHALIMAR RESTARUANT, 10/54, S.M.STREET, CALICUT, REPRESENTED BY ITS PARTNER SHRI. T.SURESHAN, S/O. KUNHIKANDAN, KANAKKOTT HOUSE, CHELAVOOR P.O., KOZHIKODE. 2. T.SURESHAN, S/O. KUNHIKANDAN, KARAKKOTT HOUSE, CHELAVOOR P.O., KOZHIKODE. BY ADV. SRI. P.N.KRISHNANKUTTY ACHAN(SR.) SRI.K.MOHANAKANNAN RESPONDENTS: ----------------------- 1. M/S. FEDERAL BANK LTD., NADAKKAVU BRANCH, KOZHIKODE, REPRESENTED BY ITS SENIOR MANAGER. 2. T.ASHOKAN, S/O. KUNHIKANDAN, VADAKOYIL HOUSE, CHELAVOOR P.O., KOZHIKODE. 3. T.VIJAYAN, S/O. KUNHIKANDAN, VADAKOYIL HOUSE, CHELAVOOR P.O., KOZHIKODE. 4. P.VIJAYAN, S/O. RARUKUTTY, PERUMPADAPPIL, MUKKAM P.O., KOZHIKODE. R1 BY ADV. SRI.N.P.SAMUEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30148/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE JUDGMENT IN OS. NO.189/92 DT. 30.9.95 ON THE FILE OF THE SUB COURT, KOZHIKODE. EXT.P2:- COPY OF THE DECREE IN OS. NO.189/92 DT. 30.9.05 ON THE FILE OF THE SUB COURT , KOZHIKODE. EXT.P3:- COPY OF THE JUDGMENT DT. 19.1.07 IN AS. NO.230/97 ON THE FILE OF THIS HONOURABLE COURT. EXT.P4:- COPY OF THE DECREE DT. 19.1.01 IN AS. NO.230/97 OF THIS HONOURABLE COURT. EXT.P5:- COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION O.A.NO.140/07 ON THE FILE OF THE DEBT RECOVERY TRIBUNAL, ERNAKULAM. EXT.P6:- COPY OF THE REPRESENTATION DT. 13.11.07 SUBMTITED BY THE 2ND PETITIONER TO THE RESPONDENT BANK ALONG WITH COPY OF DEMAND DRAFT & RECEIPTS. EXT.P7:- COPY OF THE REPRESENTATION DT. 28.11.07 SUBMITTED BY THE 2ND PETITIONER TO THE RESPONDENT BANK ALONG WITH THE COPY OF DEMAND DRAFT. RESPONDENT'S EXHIBITS EXT.R1(a):- COPY OF THE PLAINT IN OS. NO.189/92 OF THE SUB COURT, KOZHIKODE DT. 26.2.92. EXT.R1(b):- COPY OF THE APPLICATION IA./ 1503/06 IN AS. 230/97 FILED BEFORE THIS HONOURABLE COURT ON 26.8.06. EXT.R1(c):- COPY OF THE CERTIFICATE SHOWING THE PENAL INTEREST. EXT.R1(d):- COPY OF THE STATEMENT OF ACCOUNTS OF SHALIMAR RESTAURANT AS ON 30.6.07. EXT.R1(e):- COPY OF THE STATEMENT OF ACCOUNT OF SHALIMAR RESTAURANT /TRUE COPY/ P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.30148 OF 2007 ------------------------------------------- Dated this the 7th day of April, 2008 JUDGMENT The petitioners are facing proceedings under Section 31 A of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, hereinafter referred to as the RDB Act, before the Debts Recovery Tribunal. This writ petition is filed contending that even going by Ext.P5 calculation statement filed by the Bank before the Tribunal, the outstandings due under the decree was only Rs.7,76,820/- and Ext.P2 decree does not provide for any recovery of future interest and hence, the amount due from the defendants (writ petitioners) cannot grow to be beyond Rupees Ten Lakhs to sustain proceedings before the Tribunal. 2. However, Ext.P2 decree has been modified by this Court as per Ext.P3 judgment and consequential Ext.P4 decree has been issued by this Court. The legal effect of Exts.P1 to P4 are matters for the Tribunal to consider. Consideration of those WPC.30148/07 2 decrees and the amounts due thereunder would involve issues of fact and law and resolution of such issues may be required to decide as to whether the application under Section 31 A of the RDB Act is maintainable and whether the Tribunal has jurisdiction over the case in hand. This is not an issue which requires to be considered under Article 226 or Article 227 of the Constitution of India. More so because, every authority vested with jurisdiction has the initial power to decide on the question as to whether a cause brought before it is within jurisdiction. For the aforesaid reasons, this writ petition is dismissed without answering any of the issues raised, leaving the parties with liberty to place all contentions, including the plea as to maintainability and jurisdiction, before the Tribunal. If the parties make any request for the preliminary consideration of the jurisdictional issue, the Tribunal would consider whether such a consideration is called for and act accordingly. All payments made on the basis of the interim orders of this Court will stand adjusted on the basis of the final orders that would be passed by WPC.30148/07 3 the Tribunal. Since the petitioners have made certain remittances, it is directed that the Tribunal may conclude proceedings within a period of six months from the date of receipt of a copy of this judgment. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.