IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 32732 of 2008(V) --------------------------------------- PETITIONER: ------------------- G.SUKUMARAN, AGED 74 YEARS, S/O.GOVINDAN, SRIVILAS BUILDING,RAJAKKAD P.O.,IDUKKI DISTRICT. BY ADVS. SRI.RENJITH B.MARAR, SRI.L.RAJESH NARAYAN, SMT.LAKSHMI.N.KAIMAL. RESPONDENTS: ----------------------- 1. THE UNION BANK OF INDIA, RAJAKKAD BRANCH, IDUKKI DISTRICT, REPRESENTED BY ITS BRANCH MANAGER, C.VISWANATHAN. 2. MR.THOMAS JOSEPH, S/O.JOSEPH, MULLAMKUZHIYIL HOUSE, UDAYAGIRI KARA, PRAKASH PO, THANKAMANI VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 3. ABRAHAM JOSEPH S/O.JOSEPH, MULLAMKUZHIYIL HOUSE, UDAYAGIRI KARA, PRAKASH P.O, THANKAMANI VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. R1 BY ADV. SRI. A.S.P.KURUP, SC, UBI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.32732/2008-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PATTA ISSUED TO THE PETITIONER WITH RESPECT TO THE AFOREMENTIONED 15 CENTS OF LAND IN SURVEY NO. 187/1. EXT.P.2: COPY OF THE NOTICE UNDER SECTION 13 (3) DTD. 21/11/2006. EXT.P.3: COPY OF THE REPLY DTD. 05/12/2006 SUBMITTED BY THE PETITIONER. EXT.P.4: COPY OF THE COMMUNICATION DTD. 12/12/2006 ISSUED TO THE PETITIONER. EXT.P.5: COPY OF THE ORIGINAL APPLICATION ALONG WITH THE ANNEXURES THEREON. EXT.P.6: COPY OF THE WRITTEN STATEMENT PREFERRED BY THE PETITIONER IN O.A. 210/07. EXT.P.7: COPY OF THE NOTICE DTD. 28/10/2008. EXT.P.8: COPY OF THE SALE DEED DTD. 25/03/1997 OF THE PROPERTY IN SURVEY NO. 187/42/7. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).32732 of 2008-V & I.A.16170 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of January, 2009. JUDGMENT 1.The petitioner filed this writ petition on 5-11-2008 seeking to quash proceedings taken under the SARFAESI Act and for a declaration that he had not created any security interest in favour of the respondent bank vide Annexure-A8 in Ext.P5. He has also sought for a declaration that he is not liable to be proceeded against for recovery of the amounts due. The jurisdiction of this Court under Articles 226 and 227 was invoked essentially because of the complex situation created by the continued absence of a regular Presiding Officer for the Debts Recovery Tribunal, Kerala & Lakshadweep because of the non-appointment of a presiding officer on regular basis. WP(C)32732/2008 -: 2 :- 2.After hearing parties through counsel on 6-11-2008 and on different postings, thereafter, this Court issued an order on 20-11-2008 which takes stock of different aspects of the transaction, including the complaint of the petitioner that the bank could stand accused of having interpolated one of the documents, which allegation is stoutly denied by the bank. However, taking into consideration the different aspects of the total amounts fixed for recovery, it was ordered on 20-11-2008 that further distress action would stand deferred, if the petitioner deposits an amount of Rs.6 lacs within four weeks of that order and a further amount of Rs.6 lacs within a further period of four weeks. 3.The fact situation regarding the manning of the DRT continues to be the same. That institution is now manned by an officer who is put in charge of that office. Yet, the petitioner had an opportunity to move the DRT by filing a WP(C)32732/2008 -: 3 :- securitisation application as S.A.No.248/2008. The learned Presiding Officer of the Tribunal passed an ad interim conditional order of stay on 12-12-2008, obviously, without hearing the bank. In doing so, the learned Presiding Officer has granted an interim order of stay till 13-1-2009 on condition of deposit of 10% or Rs.27,96,966/- on or before 12-1-2009 and 10% of the amount mentioned in the possession notice on or before 12-2-2009. 4.The fact remains that, in terms of money, the condition imposed by the DRT is much less than the condition imposed by this Court in the order dated 20-11-2008 which was issued after hearing parties. It could have been characterised as a situation of judicial indiscipline for the Presiding Officer of the DRT to have passed an order contradicting the terms of the interim order dated 20-11-2008 since the DRT, K & L falls within the supervisory jurisdiction of this Court under Article 227 and because, there was a WP(C)32732/2008 -: 4 :- binding order in so far as the parties are concerned; issued by this Court, which is a superior constitutional court. But, there is absolutely no room to take any such view because, the order dated 20-11-2008 was not brought to the notice of the learned Presiding Officer of the DRT. Had that learned officer known that order, I am sure that the conditions imposed by the ad interim order dated 12-12-2008 would not have been at variance with those fixed by this Court in the order dated 20-11-2008. 5.I.A.16170/2008 is filed on 16-12-2008 before this Court seeking that the interim order dated 20-11-2008 may be recalled and the petitioner may be permitted to withdraw this writ petition with liberty to pursue an application under Section 17 of the SARFAESI Act before the DRT, namely, S.A.No.248/2008. 6.The fact of the matter remains that the petitioner had enjoyed the order of stay granted WP(C)32732/2008 -: 5 :- on 6-11-2008 followed by order dated 20-11-2008 in this writ petition. In terms of the order dated 20-11-2008, he was obliged to pay an amount of Rs.6 lacs within four weeks from the date of that order. It is true that ad interim conditional order of stay was granted by the DRT on 12-12-2008. Being a litigation in the sector of banking and commerce, I do not want to put this as a demonstrable case of forum shopping because, all that the petitioner had done was to go back to the statutory Tribunal where he could have sought relief, had there been a Presiding Officer on regular basis. But then, having enjoyed an order of stay on conditions fixed by this Court, I am of the considered view that the petitioner ought to pay both the instalments of Rs.6 lacs each fixed by the order of this Court dated 20-11-2008 to sustain the order of stay in terms of that order which is the order of the superior court, even if the time for payment of first instalment under that order, dated 20-11-2008, issued by this Court, had not run out WP(C)32732/2008 -: 6 :- till the ad interim order was issued by the DRT on 12-12-2008. 7.But, taking a lenient view in the matter, it is ordered that if the petitioner deposits Rs.6 lacs, being the amount which would cover the first among the conditions of the order dated 20-11-2008, instead of 10% of Rs.27,96,966/- payable on or before 12-1-2009 in terms of the order dated 12-12-2008 of the DRT in S.A.No.248/2008 and deposits the second instalment as due in terms of that order of the DRT, the petitioner would continue to enjoy the benefit of the interim order granted by the Tribunal and the Tribunal would consider the matter untrammelled by anything stated in this judgment. Subject to the above and to enable the petitioner to urge all contentions before the DRT, this writ petition is dismissed as withdrawn without prejudice to contentions, however strictly WP(C)32732/2008 -: 7 :- subject to what is stated above regarding payments. THOTTATHIL B. RADHAKRISHNAN, Sha/060109 JUDGE.