IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 25TH JANUARY 2010 / 5TH MAGHA 1931 WP(C).No. 878 of 2010(H) ------------------------ SA.197/2008 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER(S): --------------- THE CHIEF MANAGER, STATE BANK OF TRAVANCORE, KOTTAYAM CIVIL STATION BRANCH, KOTTAYAM. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: --------------- 1. E.T.THOMAS, ELAMTHOTTAM HOUSE, MELMPARA P.O., PALA, KOTTAYAM. REP. BY HIS POWER OF ATTORNEY HOLDER, LACAREDIN MATHEW, S/O.MATHEW, VELLAMATTOM, MUTTOM PO., MUTTAM VILLAGE, MUTTOM KARA, THODUPUZHA TALUK, IDUKKI DISTRICT. 2. BIJU THOMAS, S/O.E.T.THOMAS, ELAMTHOTTAM HOUSE, MELMPARA P.O., PALA, KOTTAYAM. 3. HINDUSTAN PETROLEUM CORPORATION LTD., HAVING ITS REGIONAL OFFICE, ERNAKULAM, COCHIN - 14. REPRESENTED BY SENIOR REGIONAL MANAGER. R1 AND R2 BY ADV. SRI.VARGHESE C.KURIAKOSE ADV. SRI.ADEEP ANWAR ADV. SRI.T.A.ABDUL RASHEED R3 BY ADV. SRI.E.K.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C)No. 878 OF 2010 ......................................................................... Dated this the 25th January , 2010 J U D G M E N T The second respondent borrowed a sum of Rs. 20 lakhs under a term loan and yet another sum of Rs. Five lakhs by way of Cash Credit for his business purpose from the petitioner Bank in the year 1998, after creating security interest over the property belonging to the first respondent, who is the father of the second respondent . 2. After availing the loan, as above, the borrower as well as the guarantor did not pay any heed to satisfy the due amount, under which circumstance, there was no other alternative for the Bank, but to proceed with further steps invoking the remedy under the SARFAESI Act. But in the meanwhile, after creating security interest, respondents 1 and 2 had entered into a 'lease agreement' with the third respondent herein, for running a petroleum outlet sanctioned by the 3rd respondent in the concerned premises, which was being operated based on the W.P.(C)No. 878 OF 2010 2 license given in this regard. It is the case of the petitioner, that pursuant to the initiation of the steps under the SARFAESI Act, it was challenged by the petroleum company, who, approached this Court by filing W.P.(C) 29687 of 2008, which led to Ext.P2 judgment. It has been explicitly made clear in Ext.P2 that the lease created after creating security interest over the property in question cannot have consequence at all and that the security interest superceded the other. Accordingly, the Bank was set at liberty to proceed with further steps under the SARFAESI Act and the Writ Petition was dismissed. 3. The learned Counsel for the petitioner submits, with reference to the sequence of events, that the proceedings taken by the Bank pursuant to Ext.P2 judgment were sought to be challenged by the first respondent by filing S.A.No. 197/2008, as borne by Ext. P1, before the DRT. The DRT, after taking note of the submissions and prayers made by the appellant therein passed Ext. P3 order staying all further proceedings . It is the case of the petitioner that, even though Ext.P4 written statement has been filed by the bank and the matter is pending W.P.(C)No. 878 OF 2010 3 for about two years, it has not been finalized so far, without any regard to the statutory prescription to have the matter finalized within two months and thus causing irreparable loss and hardship to the petitioner Bank, which hence is under challenge in this Writ Petition. 4. Pursuant to the urgent notice ordered on admission, respondents 1 and 2 have entered appearance and filed counter affidavit. The learned Counsel appearing for the respondents 1 and 2, with reference to the contents of the affidavit, submits that their contention is limited to the legal grounds. It is stated that by virtue of the specific stipulation under the Statute, if the petitioner is aggrieved in any manner because of the delay in finalizing the proceedings before the DRT , the petitioner has to approach the 'DRAT' and not this Court by filing the Writ Petition under Article 226 and for this reason, maintainability of Writ Petition is under challenge. 5. The learned Standing Counsel appearing for the third respondent concedes that no further proceedings have been taken against Ext. P2 judgment and that the same has become W.P.(C)No. 878 OF 2010 4 final . 6. After hearing both the sides, this Court finds that there is absolutely no rhyme or reason in keeping the proceedings in cold storage by the DRT and the proceedings have to be taken to a logical conclusion; especially in view of the clear mandate given under the statute. Alternate remedy available to the petitioner is not a bar for entertaining this Writ Petition, in view of settled position of law in this regard. In the said circumstances, the DRT, Ernakulam is directed to consider and finalise Ex.P1 proceedings, in accordance with law, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of the judgment. The Writ Petition is allowed as above. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk