Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 OP (DRT) NO. 399 OF 2022 PETITIONER:
1 SAMPATH SINGH AGED 48 YEARS SAL MAHAL, LEKSHMINADA, CUTCHERY P. O, KOLLAM, WEST VILLAGE, KOLLAM, PIN - 691013 BY ADV RAJ CAROLIN V.
RESPONDENTS:
1 THE REGISTRAR THE DEBTS RECOVERY TRIBUNAL II, 1ST AND 8TH FLOOR, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR. ERNAKULAM, PIN - 682036 2 SOUTH INDIAN BANK LTD REPRESENTED BY THE AUTHORIZED OFFICER, SOUTH INDIAN BANK LTD, REGIONAL OFFICE, YWCA BUILDING, 3RD FLOOR, M G ROAD, SPENCER JUNCTION, THIRUVANANTHAPURAM, PIN - 695001 3 GENERAL MANAGER SOUTH INDIAN BANK LTD, REGIONAL OFFICE, YWCA BUILDING, 3RD FLOOR, M G ROAD, SPENCER JUNCTION, THIRUVANANTHAPURAM, PIN - 695001 4 MANAGER SOUTH INDIAN BANK LTD, KUNDARA BRANCH, KUNDARA, KOLLAM, PIN - 691501 5 SHANAVAS SON OF ABDUL RAHIM AGED 45 YEARS A.S. ENTERPRISES, NEAR POLICE QUARTERS, ELAMPALLOOR P.O.
KUNDARA, KOLLAM-691501, RESIDING AT PUTHANVILA VEEDU, ELAMPALLOR, KUNDARA, KOLLAM, PIN - 691501 BY ADV. SUNIL SHANKAR, STANDING COUNSEL THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (DRT) No.399 of 2022 2 JUDGMENT Dated this the 19th day of October, 2022 The petitioner has approached this Court being aggrieved by the fact that the Securitisation Application filed by the petitioner under the provisions of Section 17 of the SARFAESI Act, 2002 has not been numbered and taken up by the Tribunal, taking the view that the petitioner has not produced the 'relevant documents including the order of Chief Judicial Magistrate Court, Kollam through which the Advocate Commissioner was appointed to take physical possession of the property in question'.
2.
The learned counsel appearing for the petitioner states that the petitioner's only claim in the Securitisation Application is that the petitioner who is a bonafide tenant is entitled to protection from eviction and he should not be evicted without following the due process of law. It is submitted that
OP (DRT) No.399 of 2022 3 the petitioner is not challenging any proceedings initiated under the provisions of the SARFAESI Act except taking of the physical possession and for this purpose it is not necessary for the petitioner to produce any other material other than notice issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Kollam. It is submitted that though the petitioner filed a chamber appeal before the Presiding Officer, Debts Recovery Tribunal-II, Ernakulam, the same was not entertained.
3.
Heard the learned counsel appearing for the respondent bank also.
4.
The learned counsel appearing for the respondent bank points out that normally in proceedings challenging action taken by the bank under Section 14 of the SARFAESI Act, the petition filed before the Chief Judicial Magistrate Court and the final orders issued by the Chief Judicial Magistrate Court appointing the Advocate Commissioner are also
OP (DRT) No.399 of 2022 4 annexed to the Securitisation Application and this may be a reason why the Registry of the Tribunal refused to number the petition filed by the petitioner.
It is submitted that the petitioner has no cause of action to challenge the proceedings of the Registrar before this Court under Article 226 of Constitution of India.
5.
After having heard the learned counsel for the petitioner and the learned counsel appearing for the respondent bank, I am of the view that since the petitioner is only challenging the taking of the physical possession and he is not really concerned with any other proceedings initiated under the provisions of the SARFAESI Act, it is not necessary for the petitioner to produce the order through which the Advocate Commissioner was appointed to take physical possession. It is for the petitioner to substantiate his case by producing sufficient materials and documents before the Debts Recovery Tribunal.
OP (DRT) No.399 of 2022 5 It is not necessary that every such material must be annexed to the Securitisation Application and it is always open to the petitioner to produce such materials as is necessary in the manner prescribed by the Rules framed for the working of the Tribunal.
Accordingly, this writ petition is allowed. Ext.P9 is quashed. The 1st respondent shall register the Securitisation Application filed by the petitioner taking into account the findings in this judgment. I make it clear that I have not made any observations on the merits of the matter and it will be open for the Tribunal to decide the matter in accordance with law.
Sd/- GOPINATH P.
JUDGE SKP/19-10
OP (DRT) No.399 of 2022 6 APPENDIX OF OP (DRT) 399/2022 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LEASE DEED EXECUTED ON 01/09/2018.
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 30/03/2022 ISSUED BY THE KOLLAM CORPORATION AND IN FAVOUR OF SHRI. MANOHAR SINGH.
EXHIBIT P3 TRUE COPY OF THE GST REGISTRATION OF THE PARTNERSHIP FIRM DATED 21/09/2017 OF THE APPLICANT AND THE BUSINESS CONDUCTED FROM THE SAID BUILDING.
EXHIBIT P4 TRUE COPY OF THE PHOTOCOPY OF THE NOTICE DATED 29/06/2022 ISSUED TO THE LANDLORD AND HANDED OVER TO THE APPLICANT BY THE ADVOCATE COMMISSIONER ON 21/07/2022.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT OF KERALA, IN WPC 24960/22 DATED 02/08/22.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT OF KERALA, IN WPC 24856/22 DATED 02/08/2022.
EXHIBIT P7 TRUE COPY OF THE SECURITISATION APPLICATION FILED BY THE PETITIONER BEFORE THE BEFORE THE HON'BLE DEBTS RECOVERY TRIBUNAL-II, ERNAKULAM ON 20/08/2022.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 25/08/2022 ISSUED BY THE 1ST RESPONDENT IN UNREGISTERED SECURITISATION APPLICATION (DIARY NO.
1200/2022).
EXHIBIT P9 TRUE TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 28/09/2022 IN UNREGISTERED SECURITISATION APPLICATION (DIARY NO.
1200/2022).
EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 09/10/2021 ISSUED TO THE 5TH RESPONDENT UNDER SECTION 13(2) OF THE SARFAESI ACT.
RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE