IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 WP(C).No. 24276 of 2008(M) -------------------------- OA.241/1998 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER: ------------ RAJAGOPAL B.PAI S/O.LATE MANIKYA BAI, 51 YEARS R/AT.49, SHANBOGH LAYOUT, DODANNA KUNDI, MARTHA HALLI, BANGALORE-56037. BY ADV. SRI.BOBY MATHEW RESPONDENTS: ------------- 1. RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL (KERALA AND LAKSHADWEEP), 8TH FLOOR, KERALA STATE HOUSING BOARD BUILDING, PANAMPILLY NAGAR, ERNAKULAM, KOCHI 682 036. 2 . ANUGRAHA CHARITABLE TRUST CHITTOOR ROAD, KOCHI-682018. REP. BY ITS SECRETARY 3. INDIAN BANK , BRANCH OFFICE WILLINGTON ISLAND, KOCHI-682003. REP. BY ITS BRANCH MANAGER. 4. A.N.BHAT, S/O.LATE NARAYANA BHAT 11/524, T.D.SOUTH EAST STREET, KOCHI-682002. 5. ANITHA BHAT, W/O.A.N.BHAT, CC.VIII/761, SOUTH CHERAI, KOCHI-682002. 6. N.M.BHAT, S/O.LATE NARAYANA BHAT VIII/524, TD.SOUTH EAST STREET, KOCHI-682002. R2 BY ADV.SMT.N.RANJINI R3 BY ADV.SRI.S.EASWARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.24276 OF 2008 ------------------------------------------- Dated this the 18th day of August, 2008 JUDGMENT The petitioner states that he is an absentee co-owner of an item of property, which is proceeded against under the provisions of the Recovery of Debts due to Banks & Financial Institutions Act and that the recovery officer is likely to dispossess the petitioner without deciding on a claim petition filed by him. All that he could aspire to protect is only the constructive possession which he claims as an absentee co- owner. It is also a matter of record that the petitioner has filed a suit as O.S.No.87/08 before the Sub Court, Kochi, arraying different respondents, including the creditor Bank and the auction purchaser, Anugraha Charitable Trust, as defendants. 2. The history of the proceedings under the RDB Act is that the property was offered as mortgage to create a security interest in favour of the creditor Bank for a loan transaction. That facility was not repaid and a recovery order under the Act WPC.24276/08 Page numbers followed. This led to sale proceedings and the second respondent herein, a charitable trust, purchased that item of property. The litigations were carried to this Court, by the judgment debtors under that recovery certificate, on various counts. Those contentions were repelled and the right of the trust to have the property was upheld. Before the Division Bench, in a writ appeal against that judgment, the trust had extended certain measures essentially by way of charity. The judgment debtors, after obtaining such a concession before the Division Bench, did not even abide by that. Instead, what sprung was the claim petition of the petitioner herein, supported by Ext.P2 suit filed by him earlier. Going by his case, the petitioner resides in Bangalore and his interest over the property in question, even according to him, is only a fractional right on the basis of a Will he propounds and also certain other transactions. I am not going into either the quantity or the quality of the claim of the petitioner for the very simple reason that the recovery officer is empowered to consider the claim petition and that a civil suit is pending between the parties before the Sub Court, WPC.24276/08 Page numbers Kochi. But, I am clear in my mind that the proceedings as aforesaid, by themselves, are insufficient for this Court to fork the flow of the proceedings under the RDB Act, having regard to the objects sought to be achieved by that enactment. This is all the more so because the restitutional jurisdiction available to a delivering authority would always be there with the recovery officer or with the civil court as the case may be. Under such circumstances, all that is required is for the recovery officer to expedite consideration of the claim petition filed by the petitioner on its merits and untrammelled by anything stated in this judgment. Subject to the aforesaid, this writ petition is dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.18/8.