IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 OP(C).No. 3435 of 2011() ------------------------------------ OS.167/2003 OF SUB COURT, MUVATTUPUZHA .................... PETITIONERS/APPLICANTS/JUDGMENT DEBTORS: --------------------------------------------------------------------------- 1. V.B. MUHAMMED, S/O.BAVA, VALIYAPALAPPILLIL, RANDAR KARA, MOOVATTHUPUZHA VILLAGE, ERNAKULAM DIST. 2. SUHANA MUHAMMED, W/O.MUHAMMED, VALIYAPALAPPILLIL, RANDAR KARA, MOOVATTHUPUZHA VILLAGE, ERNAKULAM DIST. BY ADV. SRI.H.HAMZA ROWTHER, SRI.V.K.PEERMOHAMED KHAN. RESPONDENT/RESPONDENT/DECREE HOLDER: ----------------------------------------------------------------------- STATE BANK OF INDIA, REPRESENTED BY ITS BRANCH MANAGER, MOOVATTUPUZHA, PIN-686 661. BY ADV. MR.R.S. KALKURA, SC, SBI. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 3435 of 2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1:- TRUE COPY OF THE JUDGMENT IN OS NO.167/03 ON THE FILES OF THE SUB COURT, MOOVATTUPUZHA. EXT.P2:- TRUE COPY OF THE DECREE IN OS NO.167/03 ON THE FILES OF SUB COURT, MOOVATTUPUZHA. EXT.P3:- TRUE COPY OF THE EXECUTION PETITION NO.88/06 ON THE FILES OF HONOURABLE SUB COURT, MOOVATTUPUZHA, IN OS.NO.167/2003 EXT.P4:- TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER EXT.P5:- TRUE COPY OF THE APPLICATION FILED BY THE PETITIONERS AS EA NO.107/2011 ON THE FILES OF THE SUB COURT, MOOVTTUPUZHA. EXT.P6:- TRUE COPY OF THE ORDER PASSED BY THE SUB COURT, MOOVATTUPZHA IN EA.107/2011 IN EP.NO.88/06. EXT.P7:- TRUE COPY OF THE SALE PROCLAMATION ISSUED BY THE SUB COURT, MOOVATTUPUZHA. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.3435 of 2011 ==================================== Dated this the 22nd day of November, 2011 J U D G M E N T This Original Petition is in challenge of Ext.P6, order dated 18.06.2011 on E.A. No.107 of 2011 in E.P. No.88 of 2006 in O.S. No.167 of 2003 of the court of learned Sub Judge, Moovattupuzha. In the course of execution petitioners/judgment debtors raised an objection regarding jurisdiction of the executing court to execute the decree in view of provisions of the Recovery of Debtors Due to Banks and Financial Institutions Act, 1993 (for short, “the Act”). It was contended that since at the time the execution petition was filed on 14.07.2006 the amount claimed exceeded `Ten lakhs though the decree was passed by the civil court, the application for execution ought to have been made before the Debt Recovery Tribunal (for short, “the Tribunal”) constituted under the Act. Hence petitioners requested the executing court to transfer the execution petition to the Tribunal which the executing court negatived by Ext.P6, order. 2. It is contended in this Original Petition that proceeding before the executing court is not maintainable since claim in the execution petition filed on 14.07.2006 exceeded `Ten lakhs. O.P(C) No.3435 of 2011 -: 2 :- 3. I have heard learned counsel for respondent-decree holder. 4. Section 17(1) of the Act deals with the jurisdiction, powers and authority of the Tribunal and states that the Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide 'applications' from the banks and financial institutions for recovery of debts due to such banks and financial institutions. Section 18 of the Act deals with bar of jurisdiction and says that on and from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in Sec.17. Section 19(1) says that where a bank or a financial institution has to recover any debt from any person, it may make an 'application' to the Tribunal within the local limits of whose jurisdiction and under clause (a), the defendant or each of the defendants where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business or personally works for gain. 5. Section 2(g) of the Act defines 'debt' as meaning any O.P(C) No.3435 of 2011 -: 3 :- liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil court or any arbitration award or otherwise or under a mortgage and subsisting and legally recoverable on the date of the application. The expression 'application' is defined in Sec.2(b) of the Act as meaning an application made to the Tribunal under Sec.19. In the light of the above it is clear that claim for recovery of the amount payable under a decree if it exceeds the limit prescribed under Sec.17(1) of the Act must be preferred before the Tribunal concerned. That is the principle laid down in Punjab National Bank v. Chaiju Ram ([2000] 6 SCC 655). There, the decree was passed on 16.02.1994 for recovery of principal sum of `6,19,250/- (the Act came into force on 25.06.1993). On 21.12.1994 the bank filed application for execution of the decree. Amount payable under the decree exceeded the limit of `Ten lakhs. The Supreme Court held that notwithstanding that the O.P(C) No.3435 of 2011 -: 4 :- decree was passed by the civil court, jurisdiction to entertain the application for execution of the decree was possessed by the Tribunal and not by the civil court. 6. In the present case though the decree is passed by the civil court, claim in the execution petition exceeded `Ten lakhs at the time the execution petition was filed on 14.07.2006 (after the commencement of the Act). Hence the execution petition was not maintainable before the civil court. But learned Sub Judge is right in holding that there is no provision to transfer the execution petition or decree certificate to the Tribunal. Resultantly, Original Petition is allowed. Proceedings in E.P. No.88 of 2006 in O.S. No.167 of 2003 of the court of learned Sub Judge, Moovattupuzha are quashed. It is open to the respondent if it is otherwise entitled to seek execution of the decree before the Tribunal as per provisions of the Act. THOMAS P. JOSEPH, JUDGE. vsv