IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 37059 of 2009(B) -------------------------- OA.1131/1999 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER: --------------- M.S.ASGAR, SON OF MOHAMMED HANEEFA, FARM HOUSE, KOTTAMOM, PARASSUVAKKAL P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695 508. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.C.N.SREEKUMAR RESPONDENTS: --------------- 1. STATE BANK OF INDIA, STATE BANK BHAVAN, MADAM CAMA MARG, NARIMAN POINT, MUMBAI-400021, 2. THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL, 8TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, COCHIN-682036. R1 BY ADV. SHRI K.K. CHANDRAN PILLAI, SC. R2 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2010, ALONG WITH W.P.(C) NO. 37162 OF 2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 37059 & 37162 OF 2009 ......................................................................... Dated this the 28th July, 2010 J U D G M E N T The petitioner in both these cases are one and the same. The relief sought for in W.P.(C) 37059 OF 2009 is to quash Ext.P3 order passed by the DRT whereby the application preferred by the petitioner for certified copy of the 'Inspection report' stated as prepared and forming part of the records of the Recovery Officer / Recovery Inspector has been denied . The case of the petitioner, as projected in the Writ Petition, is that it is a public document; more so, when the matter reflects only the actual value of the property as originally ascertained by the Recovery Officer pursuant to the site inspection made. On filing the copy application, the Recovery Officer, made his 'note' thereon and the matter was forwarded to the DRT for appropriate orders. After considering the matter, the DRT passed an order directing to serve copies of all the documents except Sl.No.2, the inspection report, placing reliance on Regulation 48 W.P.(C) No. 37059 & 37162 OF 2009 2 of the Debts Recovery Tribunal, Ernakulam (Kerala and Lakshadweep) Regulations of Practice, 2005.; which reads as follows: “Copies of correspondence: Copies of correspondence not strictly judicial or copies of general or any confidential proceedings or of documents not admitted in evidence, shall not be granted. If any doubt arises as to whether the document, of which a copy is applied for, is one of which a copy could be granted or not, the officer-in-charge shall obtain order of the Presiding Officer.” With regard to the sanctity of the said report, this Court finds it difficult to accept the stand taken by the Recovery Officer as well as the DRT, so as to keep it concealed anywhere without making it transparent . Absolutely no prejudice will be caused to the respondent Bank in this regard and the Bank has not chosen to file any counter affidavit . The reasoning given by the Recovery Officer for denying the request of the petitioner (to give copy of Sl.No.2 in the copy application), as referred to in W.P.(C) No. 37059 & 37162 OF 2009 3 Ext.P3 and upheld by the DRT is not correct and Ext. P3 is set aside to the said extent. The second respondent is directed to serve a copy of the 'inspection report' sought for, as referred to in Ext.P3 within two weeks from the date of receipt of a copy of the judgment. 2. With regard to W.P.(C) 37162 of 2009, the grievance of the petitioner is that, in the course of the steps taken by the Bank to realise the amount stated as due, the total property having an extent of One hectare in Sy. No.338/1 of Parasuvakkal Village is sought to be sold for realisation of the due amount . Going by Ext. P1 sale proclamation, it is revealed that the total outstanding liability as on 18.06.2009 is Rs.36,61,520.74/-. Whereas even according to the concerned authority, the property is having a 'reserve price' of Rs. 76 lakhs, thus almost double the amount. It is in the said circumstance that the petitioner filed Ext.P2 interlocutory application to have the matter examined and to demarcate the requisite extent with the assistance of the Advocate Commissioner , which application was considered and Ext. P3 order was passed by the W.P.(C) No. 37059 & 37162 OF 2009 4 DRT, appointing an 'Advocate Commissioner' so as to inspect and to demarcate the property, after ascertaining the value of the same. The case of the petitioner is that in the course of subsequent developments, the 2nd respondent issued oral instructions to the Advocate Commissioner not to conduct the inspection, who in turn submitted Ext.P4 memo, which hence is sought to be intercepted. 3. The learned Counsel for the Bank, with reference to the contents of the statement filed submits that the averments and allegations raised in the Writ Petition are devoid of any element of merit or bonafides. It is stated that the Commissioner happened to surrender the 'memo' in view of the fact that the 'batta' ordered to be paid to the Advocate Commissioner was not remitted on time . It is also stated that, out of the total property over which security interest has been created , only an extent of 2.47 acres of land has been subjected to sale by issuing Ext. P1 sale proclamation . 4. However going by the materials on record, the sale proclamation reveals that the 'certificate debt' is only to the tune W.P.(C) No. 37059 & 37162 OF 2009 5 of Rs.36,61,520.74/- and admittedly, the property now intended to be sold in public auction is having the value of Rs.76 Lakhs. (shown as the Reserve Price). Hence it is very much evident that the entire extent does not require to be subjected to sale. Presumably for this reason, Ext.P2 application was considered and the Recovery Officer passed Ext.P3 order appointing an Advocate Commissioner. Though the factual position with regard to the surrender of warrant of commission is seriously disputed from the other side, since the Commissioner has already surrendered the order of appointment vide Ext.P4 , the prayers sought for, to direct the 2nd respondent not to obstruct the work of the third respondent and also to direct the second respondent to conduct the sale only after completion of the work assigned to the third respondent even otherwise have become stale and are not liable to be entertained and as such, no positive relief can be granted to the petitioner . 5. However, taking note of the undisputed fact as to the significant difference with regard to the amount to be realised and the extent of the property covered by Ext.P1 sale W.P.(C) No. 37059 & 37162 OF 2009 6 proclamation, this Court finds it fit and proper that the sale of the property be effected only after ascertaining and demarcating the actual extent to be sold by proper means, in accordance with law. Accordingly, this Court holds that Ext.P1 sale proclamation shall not be given effect to . Further proceedings can be pursued after effecting proper sale proclamation in this regard. Considering the long pendency of the matter, the proceedings as above shall be pursued and finalised as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The Writ Petitions are disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk