IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 26654 of 2009(B) -------------------------- PETITIONER: --------------- SOMARAJAN, S/O.NANU ULLAS BHAVAN, PEZHUKONAM, CHEERANKAVU, EZHUKONE P.O. KOLLAM. BY ADVS. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN SMT.NITA.N.S. RESPONDENTS: --------------- 1. INDIAN BANK, KOLLAM BRANCH, KOLLAM. 2. M/S. SUNDARASWARAN, BEACH ROAD, KOLLAM. 3. S.MOHANAN, S/O.SUNDARESWARAN PARTNER OF M/S. SUNDARESWARAN SUNDARA BHAVAN, ASRAMAM,KOLLAM-2 4. S.VIJAYALAKSHMI, D/O.N.SUNDARESWARAN PARTNER OF M/S. SUNDARESWARAN SUNDARA BHAVAN, ASRAMAM,KOLLAM-2 5. S.MANJU, S/O. N.SUNDARESWARAN SUNDARA BHAVAN, ASRAMAM,KOLLAM-2 6. THE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI. * ADDL. R7 IS IMPLEADED: R7: B. MOHANACHANDRAN NAIR, HARISREE, KOCHUPILAMOODU, KOLLAM. *(ADDL.R7 IS IMPLEADED AS PER ORDER DATED 30.09.2009 IN I.A.NO. 11913/09) R1 BY ADV. SRI. S. EASWARAN, SC ADDL. R7 BY ADV. SMT.SHAHNA KARTHIKEYAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Shg/- C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 26654 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2009 J U D G M E N T 1. Against proceedings initiated by the 1st respondent Bank under the provisions of the Securitisation And Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002 (SARFAESI Act) and challenging the proceedings of sale conducted with respect to the secured assets, the petitioner had already filed a Securitisation Application as S.A. No.154/08 before the Debts Recovery Tribunal, Ernakulam. Ext.P2 is the order issued by the DRT, Ernakulam whereby the above said securitisation application is dismissed finding that the petitioner has no locus standi to file such a petition, he being not an “aggrieved person” with respect to the proceedings initiated under Section 13 (4) of the Act. However, while dismissing the Securitisation Application, W.P.(C)No. 26654 of 2009 -2- the DRT had permitted the Bank to proceed with further action in accordance with law only after 30 days from the date of receipt of Ext.P2 order. It is submitted that the petitioner had preferred appeal against Ext.P2 order before the Debts Recovery Appellate Tribunal, Chennai as evidenced by Ext.P3 memorandum of appeal. Further it is submitted that an inter locutory application was also filed along with the appeal seeking stay of all further proceedings pursuant to the sale conducted. Grievance of the petitioner is that since the Debt Recovery Appellate Tribunal, Chennai is not having sitting because there is no incumbent posted to that Tribunal, after the former presiding officer had demitted charge, he is not in a position to move the stay application before that Appellate Tribunal, and to seek interim relief thereon. Therefore the petitioner is seeking directions for consideration of the appeal and stay petition on an earlier date and still then to keep in abeyance further proceedings. 2. When the Writ Petition came up for consideration W.P.(C)No. 26654 of 2009 -3- on 23.09.2009 this court directed the petitioner to approach the Debt Recovery Appellate Tribunal, Bombay, which is having conferred with the charge of the Debt Recovery Appellate Tribunal, Chennai. In order to facilitate the petitioner to approach that Tribunal, stay was against hading over possession of the property in question for a period of 10 days. 3. The auction purchaser had now filed an impleading petition which is allowed, and he is impleaded as Additional 7th respondent. It is submitted by the learned counsel appearing for the 1st respondent Bank as well as the learned senior counsel appearing for the Additional 7th respondent that the entire sale consideration pursuant to the auction has already been deposited. It is pointed out that by virtue of Rule 9 (6) & (9) of the Security Interest (Enforcement) Rules, 2002 the authorised officer is bound to issue sales certificate and to deliver possession of the property, immediately on the remittance of the entire purchase amount by the auction purchaser. It is further W.P.(C)No. 26654 of 2009 -4- pointed out that in view of Section 17 (3) of the SARFAESI Act if the DRT finds that any measures taken by the Bank referred to under Section 13 (4) are not taken in accordance with the provisions, the DRT can order that the possession handed over to the auction purchaser is invalid and can order restoration of possession to the secured creditor or to the owner of the property. It is contended that in view of the above said provisions there is no justification in keeping transfer of actual possession pending, on the ground that the petitioner had preferred appeal against Ext.P2 order. 4. Having confronted with the above situation, the learned senior counsel appearing on behalf of the petitioner, fairly conceded that, the petitioner can agitate the appeal before the appropriate Appellate Tribunal and his right need only to be protected in view of the provisions contained in Section 17 (3) of the Act. 5. Under the above circumstances the Writ Petition is dismissed without prejudice to rights of the petitioner to W.P.(C)No. 26654 of 2009 -5- persue the appeal field against Ext.P2 before the Appellate Tribunal having jurisdiction. It is made clear that the Appellate Tribunal shall consider and dispose of the appeal on its merit, untrammelled by any of the observations made above. C.K. ABDUL REHIM JUDGE shg/