IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 WP(C).No. 36300 of 2008(U) -------------------------------------- OA.308/2006 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER(S): ---------------------- T.K. VASUDEVAN PILLAI, SALEELA BUILDING, VYTTILA, COCHIN -19. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT(S): ------------------------ THE FEDERAL BANK LTD., ERNAKULAM (SOUTH) BRANCH , ERNAKULAM. BY ADV. SRI.K.K.CHANDRAN PILLAI, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.36300 of 2008-U = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of December, 2008. JUDGMENT 1.The petitioner is the second defendant in O.A.308/2006 of the Debts Recovery Tribunal. His son, the first defendant aspired for education outside India. A loan was obtained for such purpose. On account of default, following the loan availed in 1999, the bank sued the debtors in 2006 before the Debts Recovery Tribunal. Though written statement was filed, the defendants suffered an ex parte decree on the ground that the written statement was not filed within the time prescribed. In 2007, they filed an application to set aside the ex parte decree. However, they did not obtain any interim order from the DRT deferring or staying the enforcement of the ex parte decree. Later, they moved the Recovery Officer for stay of distress action. The WP(C)36300/08 -: 2 :- Recovery Officer granted a month's stay and thereafter, dismissed that matter. The proceedings are therefore on, in enforcement of the ex parte decree. On the premise that the DRT is not sitting, this writ petition is filed seeking reliefs against the distress action. 2.The petitioner's son, the first defendant in O.A.308/2006, had filed WP(C).18170/2007 raising, essentially, the plea that he was entitled to a holiday or a gestation period in as much as there could be no existence for repayment or recovery until he completed the education and obtained the degree. On query by this Court, it is also stated by his counsel that there is some confusion about the legal effect of the degree which he claims to possess. Whatever that be, the writ petition of the first defendant, his son, was dismissed for default. The application to restore it was also dismissed for default. Another application for restoration of that writ petition was taken up today and the learned counsel for the first WP(C)36300/08 -: 3 :- defendant seeks that the said matter has become infructuous because, with the passage of time, the locking period claimed by him has also run out. Hence, that matter has been dismissed by me vide separate order. 3.In the case in hand, I have heard the learned counsel for the petitioner, second defendant, the father quite in extenso. I have also heard Adv.Sri.K.K.Chandran Pillai on behalf of the bank. He would recall that a counter affidavit was filed by the bank in WP(C).18170/2007. I am not adverting to the contentions therein. On my request, the learned counsel for the petitioner has handed over to me a copy of the written statement filed by the parties before the DRT. The availing of the loan is not in dispute. The transaction, as such, is not disputed. The creation of any equitable mortgage in 1999 and the suit having been filed in 2006, rule out any plea of limitation. Therefore, the ultimate WP(C)36300/08 -: 4 :- bargain before the DRT could be only in the range of any dispute. That cannot project as regards the rate of interest and other incidentals. Taking these factors into consideration and because, the principal amount advanced by the bank is Rs.10 lacs, this writ petition is ordered directing that ex parte decree in O.A.308/2006 will stand set aside, if the petitioner remits an amount of RS.10 lacs in five equal monthly instalments of Rs.2 lacs each payable on or before the last working day of every month commencing from December, 2008. If such payment is made, the DRT will take up the interlocutory application pending before it to set aside the ex parte decree and proceed to try the lis on other grounds by taking on record the written statement. The payment of Rs.10 lacs in terms of this judgment will be provisional and subject to the final decision that may be taken by the DRT in the O.A. proceedings. If there is default in remitting any of the instalments as aforesaid, the benefits of this judgment will stand recalled WP(C)36300/08 -: 5 :- and the writ petition will stand dismissed automatically enabling the bank to forthwith proceed with the impugned distress action, without fresh notice to the petitioner. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/151208