IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 OP (DRT).No. 1177 of 2010(O) ------------------------------------ OA.132/1997 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER --------------- K.S.SELVAM,S/O. SEBASTIAN, AGED 61 YEARS KACKERIEL HOUSE, KANNAMALY, COCHIN -8. BY ADV. SRI.KRISHNA PRASAD. S RESPONDENT(S): -------------------- 1. THE CATHOLIC SYRIAN BANK LTD., M.G.ROAD, ERNAKULAM. 2. THE RECOVERY OFFICER, OFFICE OF THE RECOVERY OFFICEER, DEBTS RECOVERY TRIBUNAL (KERLA AND LAKSHADWEEP) 8TH FLOOR K.S.H.B. BUILDING, PANAMPILLY NAGAR, ERNAKULAM. BY ADV. SRI.C.A.JOY, SC. THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J --------------------------------------- O.P (DRT) No.1177 of 2010 ---------------------------------------- Dated this the 4th day of January, 2011. J U D G M E N T This writ petition is filed with the following prayers: “ i) Issue an order directing the respondents 1 and 2 not to auction the properties mentioned in Exhibit P5 till The Debt Recovery Tribunal, Ernakulam disposes Exhibit P3 and Exhibit P4. ii) Issue order directing the 1st respondent to consider Exhibit P6 proposal in the light of the dictum laid down in C.K.Sasankan Vs Dhanalakshmi Bank Ltd reported in 2009(11) SCC 60. iii) Issue order directing the Debt Recovery Tribunal, Ernakulam to consider and pass orders in Exhibit P3 & Exhibit P4 in the light of the dictum laid down in C.K.Sasankan Vs. Dhanalakshmi Bank Ltd. reported in 2009(11) SCC 60. iv) Issue such other order or direction, as this Honourable Court deems fit and proper in the circumstances of the case.” 2. It is evident that the 1st respondent Bank had filed an original application before the Debt Recovery Tribunal as early as in the year 1997 and the petitioner herein is the 2nd defendant in that O.A. It is conceded that the petitioner had received notice from the Debt Recovery Tribunal. But O.P (DRT) No.1177 of 2010 2 he failed to enter appearance and to contest the matter before the Tribunal. According to the petitioner, it was on the basis of an assurance given by the 1st defendant in the O.A that the interest of the petitioner will be safeguarded, the petitioner refrained from contesting the matter before the Tribunal. It is further revealed that the O.A was decreed as early as on 30.10.2000, declaring the petitioner as well as the 1st defendant as ex-parte. Ext.P4 petition for setting aside the ex-parte decree was filed before the Debt Recovery Tribunal only during May 2010. The said petition was filed along with Ext.P3 petition seeking condonation of delay of 3515 days. It is the grievance of the petitioner that the 2nd respondent is now proceeding with steps for sale of the property belonging to the petitioner. Ext.P5 is the sale proclamation published in this regard. It is contended by the petitioner that, eventhough the Bank had approached the 2nd respondent seeking permission for participating in the bid, copy of such petition was not served on the petitioner and the petitioner is denied of an opportunity to contest such petition. It is further submitted that the O.P (DRT) No.1177 of 2010 3 petitioner had filed objection before the 2nd respondent as per Ext.P2 in proceeding against the property belonging to him. Yet another contention raised by the petitioner is that the findings in the decree passed in the O.A regarding the rate of interest is unsustainable in view of the decision of the Hon'ble Supreme Court in C.K.Sasankan V. Dhanalakshmi Bank Ltd. (2009(11) SCC 60). 3. Considering the facts and circumstances as stated above, I am of the view that the writ petition is highly misconceived. If the petitioner has got a case that he has sufficient reasons which prevented the petitioner from contesting the O.A before the Debt Recovery Tribunal and if the petitioner has got a further case that he was prevented from seeking to set aside the ex-parte decree due to valid reasons, it is for the petitioner to pursue Exts.P3 and P4 petitions before the Debt Recovery Tribunal. Meanwhile, if the petitioner is aggrieved by any coercive steps of execution, it is for the petitioner to bring the same to the notice of the Debt Recovery Tribunal and to seek appropriate remedy. It is also left open to the petitioner to O.P (DRT) No.1177 of 2010 4 seek appropriate remedy by objecting further proceedings before the 2nd respondent, till the disposal of the applications now pending before the Debt Recovery Tribunal. 4. At any rate interference by this Court in exercise of jurisdiction under Article 226 or 227 is not at all warranted at this stage. Hence I am of the view that the writ petition could not be entertained. However, it is made clear that the petitioner will be at liberty to seek appropriate remedy either before the Debt Recovery Tribunal or before the 2nd respondent. All the contentions raised in this writ petition are left open for agitation. In the result, the writ petition is dismissed without prejudice to rights of the petitioner to seek appropriate remedies as directed above, if permissible under law. C.K.ABDUL REHIM JUDGE ab