IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 25405 of 2008(Y) -------------------------- AGAINST THE ORDER IN IA 232/2004 IN OA.396/2002 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER: ------------ SRI.K.J. JOSEPH, AGED 52, S/O. JOSEPH, KUNNASSERIYIL HOUSE, THIRUVAMPADY.P.O, NEZHOOR, KOTTAYAM. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENTS: ------------- 1. STATE BANK OF TRAVANCORE, KADUTHURUTHY BRANCH, KOTTAYAM, REP. BY ITS BRANCH MANAGER. 2. THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL, ERNAKULAM. BY ADV. SHRI SATHISH NINAN, SC, SBT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ............................................................ W.P.(C) No. 25405 OF 2008 ........................................................... Dated this the 27th August, 2008 J U D G M E N T The reliefs prayed for in the Writ Petition are the following: “(i) Call for the records leading to Ext. P7 sale proclamation, examine the same and direct the second respondent to give permission to the petitioner either to arrange a private sale or grant 6 months time to clear the liability if necessary by issuing a writ of mandamus. (ii) Issue appropriate directions to the debts recovery tribunal to take up Ext.P8 application, consider the same on merits and grant a reasonable time to the petitioner to liquidate either by arranging a private sale or by other modes.” 2. The petitioner is the sole respondent in O.A.No. 396 of 2002 on the file of the Debt Recovery Tribunal, Ernakulam. The O.A. was filed by the first respondent herein, the State Bank of Travancore. The Debt Recovery Tribunal disposed of O.A.No. 396 of 2002 ex parte on 14.10.2003. The petitioner filed I.A.No. 231 of 2004 before the Tribunal for setting aside the ex parte decree. There was a delay of 66 days in filing the application to set aside the ex parte order. The Tribunal dismissed the applications as per Exhibit P4 order dated 13.07.2004. The petitioner challenged Ext. P4 order in appeal before the Debt Recovery Appellate Tribunal at Chennai. The Appellate Tribunal passed Exhibit P5 order dated 07.04.2005 setting aside the order passed by the Debt Recovery Tribunal, on condition that the petitioner pays 50% of Rs.12,16,736/- W.P.(C) No. 25405 OF 2008 2 within two weeks from the date of the order. An opportunity was also afforded to the petitioner to file a written statement on compliance of the conditions for payment. It was clarified in Exhibit P5 order that in case of breach of any of the conditions in the order, the appeal filed by the petitioner would stand dismissed and the impugned order of the Debt Recovery Tribunal would stand restored. Exhibit P5 order was passed in the background of the submission made by the learned counsel appearing for the petitioner, which was recorded in Exhibit P5 order. The relevant portion of the order reads as follows: “Having gone through the impugned order, in my view, there is nothing wrong with the order at all and no fault can be found with it and I was about to dismiss the appeal filed by the appellant. But the appellant's advocate submitted that he be given a chance to pursue the case on merits and his client is willing to deposit 50% of the decretal amount within two weeks from today and he will file written statement on or before 30.4.2005. The other side is not seriously opposing. Accordingly, following order is passed. “ 3. The petitioner did not comply with the directions contained in Exhibit P5 order. Proceedings were initiated for recovery of the amount. The recovery officer issued Exhibit P7 Proclamation of Sale. As per Exhibit P7, an extent of one acre of land is sought to be sold in public auction, fixing a reserve price at Rs.18,00,000/- for recovery of a sum of Rs. 19,77,585.93/-. After the initiation of the recovery proceedings, the petitioner filed Exhibit P6 Review Petition before the Debt Recovery Appellate Tribunal, which was actually filed on 7th March, 2008 though dated 7th March, 2007. The petitioner filed Exhibit P8 application W.P.(C) No. 25405 OF 2008 3 for adjournment of the sale before the Debt Recovery Tribunal and also filed Exhibit P9 application before the Recovery Officer for adjournment of sale by six months for the purpose of enabling the petitioner to arrange a private sale in respect of 25 cents of land out of the property sought to be sold. Sale of a portion of the land sought to be sold, according to the petitioner, would be sufficient to meet the liability. No orders have been passed on Exhibits P8 and P9 applications. 3. In the facts and circumstances of the case, I do not think that permission can be granted to the petitioner to arrange for a private sale of the land sought to be sold. At the same time, in the interest of justice, it is necessary to decide the question whether the sale of a portion of the property would be sufficient to satisfy the decree debt. The fact that a reserve price is fixed by the recovery officer would not preclude the recovery officer to consider the question as to whether the sale of a portion of the property would be sufficient to satisfy the decree debt, in spite of the fact that the reserve price was fixed on a valuation made at the instance of the recovery officer. The recovery officer would also consider the question as to whether the sale of the property could be had in lots, so that the petitioner would be able to salvage at least a portion of the property. It does not appear that the recovery officer has applied his mind to these aspects. It is trite that in a court auction sale, it is the duty of the court to ascertain whether it is necessary to sell the whole extent of the land sought to be sold or whether it is sufficient to order sale of a portion of the property in W.P.(C) No. 25405 OF 2008 4 order to satisfy the decree debt. The same principle would apply in the case of a sale by the recovery officer as well. In the facts and circumstances of the case, the Writ Petition is disposed of with the following directions. i) The recovery officer shall consider Exhibit P9 only to the limited extent of ascertaining whether the sale of the whole property is necessary to recover the amount due from the petitioner, for realisation of which, the property is sought to be sold. ii) On ascertaining the same, if the recovery officer finds that it is sufficient if a portion of the property is sold, necessary proclamation shall be issued to carry out such decision. iii) The recovery officer shall also consider the question as to whether the sale of the property can be had in lots. iv) The petitioner shall submit all the necessary facts before the recovery officer in support of his contention within a period of three weeks from today. v) The recovery officer need not afford an opportunity of being heard to the petitioner since the petitioner waives any such right to enable him to get the relief sought for in the Writ Petition which otherwise as of a right he may not be entitled to. K.T. SANKARAN, JUDGE. lk