ABDUL BARI Vs. AUTHORISED OFFICER CANARA BANK LTD

JUDGEMENT

(1.) This writ petition has been filed praying to quash Ext.P9 order dtd. 22/11/2022 in I.A.No.192/2022 in AIR (SA) No.184/2021 on the files of the Debt Recovery Appellate Tribunal, Chennai and for a direction to restore AIR (SA) No.184/2021 and all other petitions therein.

(2.) Heard Sri.S.K.Premraj, on behalf of the petitioners and Sri.E.K.Nandakumar, Senior Advocate instructed by Sri M.Gopikrishnan Nambiar, on behalf of the respondents.

(3.) The petitioners stood as guarantors of M/s.Kailas Gold and Diamonds, Kakkathuruthy, Thrissur for an overdraft facility of ?2,00,00,000/-, which was availed on 15/2/2016. Two items of properties belonging to the petitioners were mortgaged. The account became NPA on 6/7/2017. A demand notice was issued under Sec. 13(2) of the SARFAESI Act on 6/11/2017 and symbolic possession was taken under Sec. 13(4) of the Act on 25/1/2018. The Securitisation Application S.A.No.358/2018 was filed before the Debt Recovery Tribunal II, Kerala, Ernakulam Bench contending that the properties mortgaged were agricultural land and the respondents are not entitled to proceed against the said properties. On 29/5/2020, by Ext.P1 judgment, S.A.No. 358/2018 was dismissed. The Tribunal considered the effect of the report of the Advocate Commissioner appointed in the case and the other evidence that was available and held that there is nothing on record to show that the properties were agricultural lands at the time of mortgage and that the applicants had not executed any document stating that they have created security interest over agricultural lands. It is noticed that the title deeds show the properties as garden lands/dry lands. WP(C) No.9469/2021 was filed by the petitioners challenging Ext.P1 order and the writ petition was disposed of by Ext.P2 judgment directing the petitioners to pursue their appeal before the Debt Recovery Appellate Tribunal, Chennai. The petitioners again approached this Court by filing WP(C) No.525/2022 when coercive steps were being taken and this Court by Ext.P3 order directed that the petitioners shall not be dispossessed for a period of six weeks, on condition that they deposit a sum of ?10,00,000/- on or before 7/2/2022. The petitioners preferred R.P.No.142/2022 against the order in WP(C) No.525/2022 which was admitted on 4/2/2022. This Court directed that the petitioners shall not be dispossessed till 4/3/2022. The order was extended on 4/3/2022 for a period of two weeks by Ext.P5. On 23/3/2022, by Ext.P6 order, the review petition was closed directing the petitioners to seek their remedies before the Debts Recovery Appellate Tribunal and the dispossession was stayed for a further period of one month to enable the petitioners to move the Appellate Tribunal. The petitioners again filed WP(C) No.21776/2022 which was disposed of by Ext.P7 judgment. This Court found that the petitioners failed to prove their bonafides and are not entitled to any indulgence from this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The Court also noticed that Ext.P2 judgment was a result of suppression of material facts, since the orders were obtained stating that an appeal had been filed, while the appeal was filed only in the month of October 2021. After finding that there is considerable merit in the contention taken by the counsel for the respondent Bank, as a last chance, to ensure that petitioners did not lose any opportunity for seeking relief from the Appellate Tribunal, the taking of dispossession was deferred till 21/7/2022 to enable the petitioners to move the Appellate Tribunal. The petitioners challenged Ext.P7 judgment before a Division Bench in Writ Appeal No.998/2022. The Division Bench noted the respondent Bank's contention that Ext.P2 interim order was obtained on 9/4/2021 by suppressing material facts. The Court observed that non-disclosure of the details of the past and pending litigation concerning the subject matter of the dispute would amount to material suppression of facts disentitling a litigant from discretionary remedy under Article 226 of the Constitution of India. The Writ Appeal was dismissed.