JOSE ANTONY THOTTASSERY Vs. ANIL KURUVILLA

JUDGEMENT

(1.) The main question urged for a decision in this Original Petition is whether a suit could be withdrawn from the civil court and transferred to the Debt Recovery Tribunal (for short, "the DRT') constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, "the DRT Act") for disposal along with an application made to the DRT under Sec. 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, "the SARFAESI Act") Incidentally, the question whether trial of the suits pending in the civil court should be stayed until the application is disposed of by the DRT or vice versa also raised for a decision. The 2nd respondent is said to have sold 16.350 cents out of a total of 18.40 Ares to the 1st respondent as per two sales deeds dated 29-7-2005 and 30-6-2007. 1st respondent filed suit in the Munsiffs Court, Thiruvalla (later transferred to the Sub Court, Thiruvalla and re-numbered as O.S. No. 77 of 2009) against the 2nd respondent for a decree for prohibitory injunction against trespassing into the suit property (16.350 cents). In that suit the 2nd respondent filed Ext. P-3, written statement denying title and possession claimed by the 1st respondent.

(2.) The 2nd respondent, in turn filed O.S. No. 155 of 2008 in the court of learned Sub Judge, Thiruvalla against the 1st respondent to set aside sale deed dated 29-7-2005 and for injunction against trespassing into 16.350 cents. 1st respondent filed Ext. P-5, written statement in that suit claiming title and possession of the said property as per sale deed dated 29-7-2005 (which is sought to be set aside in O.S. No. 155 of 2008). As per the order of learned District Judge, Pathanamthitta, O.S. Nos. 155 of 2008 and 77 of 2009 are being proceeded jointly.

(3.) Respondents 2 and 3 had mortgaged the said 18.40 Ares in favour of the 4th respondent, State Bank of Travancore on 13-12-2004. On 25-1-2007, 4th respondent declared the mortgaged property as non-performing asset in accordance with the provisions of the SARFAESI Act. An Advocate Commissioner was appointed to take over the 18.40 Ares. 2nd respondent filed W.P.(C) No. 25804 of 2008 against the 4th respondent and others in this Court seeking facility to pay the loan amount in installments. This Court granted relief to the 2nd respondent. According to the 4th respondent, there was default on the part of 2nd respondent in paying the installments as directed by this Court. Petitioner states that on default in payment of the installments, 4th respondent proceeded to sell the 18.40 Ares mortgaged to it as per provisions of the SARFAESI Act. At that stage respondents 2 and 3 sought permission for private sale of the property under Sec. 13(4) of the said Act and the relevant Rules. The 3rd respondent filed W.P.(C) No. 20274 of 2009 and this Court directed the 4th respondent to consider that request of 3rd respondent. Later, 4th respondent sold the mortgaged property as per provisions of the SARFAESI Act Petitioner purchased the property. Ext. P-1, sale certificate dated 11-9-2009 was issued in favour of petitioner. Petitioner claims that by virtue of Ext. P-1, sale certificate he acquired title and possession of the mortgaged property.