IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 1617 of 2008(P) ------------------------- PETITIONER(S): ---------------------- 1. REJI JOSEPH, S/O.LATE K.O.JOSEPH, AGED 41 YEARS, PROPRIETOR, M/S.R.G.TRADERS, PARANANI ARCADE, ERATTUPETTA. 2. THRESSIAMA JOSEPH, W/O.LATE K.O.JOSEPH, AGED 71 YEARS, KUNNEL HOUSE, VELAKUMADAM, POOVARANNI P.O., PAIKA, KOTTAYAM. BY ADV. ,MR.K.C.ELDHO RESPONDENT(S): ---------------------- 1. THE DHANALAKSHMI BANK LIMITED, PALA BRANCH, REPRESENTED BY ITS BRANCH MANAGER. 2. BENNIYACHAN.K.J., WORKING AS BRANCH MANAGER, THE DHANALAKSHMI BANK LIMITED, PALA BRANCH, KOTTAYAM DISTRICT. 3. SABU JOSEPH, S/O.LATE K.O.JOSEPH, AGED 31 YEARS, KUNNEL HOUSE, VELAKUMADAM, POOVARANNI P.O., PAIKA, KOTTAYAM. 4. DEBT RECOVERY TRIBUNAL, ERNAKULAM, REPRESENTED BY ITS REGISTRAR. BY ADV. MR.NAGARAJ NARAYANAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1617 of 2008(P) APPENDIX PETITIONERS' EXHIBITS: Ext.P1 - A TRUE COPY OF THE LOAN SANCTION LETTER DATED 01.02.2002 EXPARTE ORDER OF THE TRIBUNAL DATED 22.6.2006. Ext.P2 - A TRUE COPY OF THE EXPARTE FINAL ORDER OF THE TRIBUNAL DATED 22.6.2006. Ext.P3 - A TRUE COPY OF THE I.A. NO. 1352/2006 IS PRODUCED IN O.A. NO. 269/2005. Ext.P4 - A TRUE COPY OF THE I.A. NO. 1503 OF 2006 IN O.A. NO. 269 OF 2005. Ext.P5 - A TRUE COPY OF THE JUDGMENT DATED 6.3.2007 IN W.P.(C). No. 2262 OF 2007 OF THE HIGH COURT OF KERALA. Ext.P6 - A TRUE COPY OF THE NOTICE DATED 11.09.2007 ISSUED BY THE FIRST RESPONDENT. Ext.P7 - A TRUE COPY OF I.A. NO. 1588 OF 2007 FILED BY THE FIRST RESPONDENT BANK. Ext.P8 - A TRUE COPY OF THE NOTICE DATED 21.12.2007 ISSUED BY THE PETITIONER. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 1617 of 2008 ................................................. Dated this the 20th day of August, 2009 J U D G M E N T The petitioner is a defaulter in repayment of loan amounts due to the 1st respondent bank. The bank filed O.A. No.269 of 2005 before the Debt Recovery Tribunal, Ernakulam. In that O.A. it appears that the bank has filed a memo dated 20.7.2007 stating that the matter has been settled. On the basis of the same, the proceedings before in the O.A. has been closed including a petition filed by the petitioner in this I.A., seeking to set aside the earlier ex parte order passed by the Tribunal in the O.A. Subsequently, the bank themselves filed a petition before the Debt Recovery Tribunal to withdraw the memo earlier filed, on the ground that it was filed under a mistake. In view of the fact that in the meanwhile the O.A. itself has been closed they are also stated to have filed a review petition with petition to condone delay and they are pending. In the meanwhile, the bank has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security W.P(C) No. 1617 of 2008 -2- Interest Act, 2002, for recovery of amounts due under the loan amounts. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “a. Call for the records leading to Exhibit P6 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. b. Issue a writ of mandamus or any other appropriate writ, order or direction, compelling the respondents 1 and 2 not to take any further proceedings on Exhibit P6 pending final disposal of Exhibit P7 petition filed by the first respondent bank before the DRT, Ernakulam.” 2. The petitioner has no case that they have paid the entire amounts due to the bank. They are now banking solely on the memo submitted by the bank before the Debt Recovery Tribunal to the effect that the matter has been settled. They do not dispute the fact that petition for review is pending before the Debt Recovery Tribunal in respect of the same subject matter. As such they do not dispute that amounts are still due from them to the bank. It is also settled law that pendency of O.A. before the Debt Recovery Tribunal is not a bar for initiating proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. In such circumstances, the remedy of the petitioner lies in filing W.P(C) No. 1617 of 2008 -3- an appeal before the Debt Recovery Tribunal as provided under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Therefore without prejudice to that right, if the petitioner can still do so at this point of time, this writ petition is dismissed. S. SIRI JAGAN, JUDGE rhs