IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 17118 of 2010(L) -------------------------- ( DRC.1503/2010 of DEBT RECOVERY TRIBUNAL, ERNAKULAM ) PETITIONER: --------------- DR.MATHEW ANTONY, KOLLAMKULAM HOUSE, P.B.NO.26, KANJIRAPPALLY, KOTTAYAM-686507. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.MAHESH MENON RESPONDENTS: --------------- 1. ORIENTAL BANK OF COMMERCE, M.G.RAOD BRANCH, ERNAKULAM. 2. P..J.CHACKO, PUTHUPARAMBIL, 31ST MILE, MUNDAKKAYAM P.O., KOTTAYAM DISTRICT. R1 BY ADV. SRI.SAJI.P.JOSEPH R1 BY SMT.T.T.JAYANTHY R2 BY SRI.K.GOPALAKRISHNA KURUP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 17118 OF 2010 ......................................................................... Dated this the 6th August , 2010 J U D G M E N T The petitioner has approached this Court with the following prayers: “a) A writ of certiorari or such other appropriate writ, order or direction quashing/setting aside Exhibit P4 order dated 18/3/2010 passed by the Recovery Officer, DRT, Ernakulam. b) Direction directing the Recovery Officer, DRT (Kerala and Lakshadweep) at Ernakulam to take back Exhibit P3 application on file and to consider and dispose of the same, after affording adequate opportunity to both sides to complete their pleadings and adduce whatever evidence, as is deemed necessary, by means of a reasoned order, c) Grant such other reliefs as are deemed fit and proper in the facts and circumstances of the case. ” 2. The learned Counsel for the petitioner narrates the sequence of events stating that the basic issue takes its origin W.P.(C) No. 17118 OF 2010 2 from the transaction in connection with the company by name M/s. Amrok Shipping Pvt. Ltd, who had borrowed various amounts from the first respondent Bank on the strength of collateral security and such other securities. It also remains a fact that by virtue of the power of attorney executed in favour of his wife, she had offered the said property as security to the Bank, though the right of the wife to have offered the property as security on the basis of power of attorney is strongly contested by the petitioner, which, however does not form the subject matter of the present Writ Petition. 3. When the Company did not satisfy the amount, the Bank filed O.A.No. 71 of 2002 against the Company. But even before that, the Company was ordered to be wound up as per the order dated 07.03.2001 in C.P.Nos. 27 of 1999 and 42 of 2000 passed by the Company Court. 4. It is the case of the petitioner that the petitioner is neither the Director of the said Company, nor a share holder. In spite of this, the petitioner was also shown as a party to the O.A., only by virtue of the fact that it is his property that was W.P.(C) No. 17118 OF 2010 3 offered as security by his wife by virtue of power of attorney as aforesaid. The learned Counsel for the petitioner submits that without issuing any notice , the proceedings were finalised by the DRT and the property has already been sold to the second respondent. It is stated that the petitioner came to know about the sale only much later, when the second respondent informed the petitioner. Immediately, the petitioner rushed to the DRT making necessary enquiries and on coming across the actual facts and figures, the petitioner preferred a Review Petition before the DRT where it is pending. The learned Counsel for the petitioner submits that the petitioner has already produced all the requisite materials including Passport, to show that at the relevant time, the petitioner was working abroad and there was absolutely no chance for having served any notice to the petitioner. It is also brought to the notice of this Court that the address of the petitioner as given in the O.A. is that of the Company, with which, the petitioner has no connection at all and no notice was ever sent to the residence of the petitioner. It is also pointed out that after considering the merits of the case, the W.P.(C) No. 17118 OF 2010 4 DRT was pleased to issue Ext. P2 order of 'status quo' on 29.01.2010 and that the same is still continuing. The petitioner has also filed Ext.P3 application before the Recovery Officer to set aside the sale. However, without any regard to the specific contentions and also existence of Ext.P2 order of status quo passed by the DRT, the said application was dismissed by the Recovery Officer, as per Ext. P4 order dated 18.03.2010, which made the petitioner to approach this Court by filing the present Writ Petition. 5. The second respondent has filed a counter affidavit rebutting the averments and allegations raised in the Writ Petition stating that there was no need, occasion or necessity for the second respondent to have informed the factum of sale to the petitioner and that the second respondent has become the owner of the property by virtue of the sale, which has become final. It is also pointed out that the petitioner does not have any 'locus standi' to file the Writ Petition, as the property concerned has already been parted with by the petitioner, by virtue of the documents bearing No. 3677/1998 of S.R.O., W.P.(C) No. 17118 OF 2010 5 Kanjirappally, a copy of which has been produced and marked as Ext.R2(a). Various other contentions are also raised in the said counter affidavit. 6. The first respondent Bank has filed a counter affidavit as well as additional counter affidavit raising serious contentions against the averments in the Writ Petition and also in answer to the reply affidavit filed by the petitioner. The learned Counsel for the Bank submits that the alleged non-receipt of the notice and absence of knowledge of the proceedings before the Tribunal to the petitioner is not at all correct or proper. The learned Counsel also submits that pursuant to the instruction given by the petitioner, a learned Advocate of an eminent firm at Ernakulam had filed vakalath before the Tribunal and the matter was finalised by the Tribunal ex-parte, only because of the fact that no pleadings were filed from the part of the petitioner, inspite of entering appearance though the lawyer. 7. After hearing all concerned , this Court does not find it necessary to go into the merits of the case, in view of the fact that the petitioner has also sought to approach the DRT by W.P.(C) No. 17118 OF 2010 6 filing Ext. P1 Review Petition and the same has already been acted upon by the Tribunal granting Ext. P2 order of 'status quo' passed on 29.01.2010. It is also brought to the notice of this Court that the interim order is being extended from time to time. If the petitioner is aggrieved of Ext. P4 order dated 18.03.2010 passed by the Recovery Officer during the existence of the interim order of 'status quo' ordered by the Tribunal as per Ext. P2, it is for the petitioner to challenge the correctness or sustainability of the same by resorting to appropriate remedy before the appropriate forum. For that reason, this Court does not find it necessary to retain the Writ Petition, which otherwise will only mean a parallel exercise. 8. In the above circumstance, this Court does not find it as a fit case to invoke discretionary jurisdiction under Article 226 of the Constitution . Accordingly, interference is declined. It is made clear that this will not stand in the way of the parties to move the concerned Forum in proceeding with the matter, which is stated as pending before the DRT, raising necessary pleadings and adducing evidence so as to substantiate the W.P.(C) No. 17118 OF 2010 7 rival contentions and it is for the DRT to finalise the proceedings on the basis of the pleadings and evidence sought to be adduced. The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk