R. DHANALAKSHMI PROPRIETRIX AND OTHERS Vs. SENIOR MANAGER

JUDGEMENT

(1.) The petitioners have approached this Court through this Original petition impugning Ext.P15 final order of the Debt Recovery Tribunal-II [DRT-II], Ernakulam, in S.A.No.66/2006 (T.S.A No.10/2016). The grievance of the petitioners in the Original petition is essentially that, while passing the said order, the DRT-II effectively avoided taking a decision on the issues raised in the Securitisation Appeal, by misinterpreting the judgment of a Division Bench of this Court in W.A. No. 1250/2007. It is therefore contended that the impugned order of the Tribunal is vitiated by a jurisdictional defect, in that, the tribunal failed to exercise its jurisdiction in respect of one of the issues that was raised before the Tribunal, and dismissed S.A. No. 66/2006, solely on the ground that the petitioners had not succeeded in establishing the point with regard to alleged taking over by the bank, of more extent of property than what was mortgaged with the bank.

(2.) I have heard the learned counsel for the petitioners, the learned Standing counsel for the respondent bank and also the learned counsel for the auction purchaser.

(3.) On a consideration of the facts and circumstances of the case and also the submissions made across the bar, I find from a perusal of the averments in the original petition that the petitioners, who are the proprietors of a textile firm, had availed a cash credit facility from the respondent bank. The cash credit facility extended to the petitioners was secured by the mortgage of three items of property in various Sy. Nos. of Kilikolloor Village, Kollam East Village and Kollam West Village. Pursuant to a notice issued to the petitioners under the SARFAESI Act, the respondent bank proceeded to take symbolic possession of the properties that were mortgaged to the respondent bank. Thereafter, a sale notice was also issued proposing the sale of the mortgaged properties. At that stage, the petitioners impugned the action of the respondent bank through the aforementioned S.A.No.66/2006 filed before the DRT. It would appear that, in the meanwhile, the petitioners also approached the respondent bank with the proposal for a One Time Settlement, and with a view to getting the bank to favourably consider the said proposal, the petitioners approached this Court through W.P.(C)No.24839/2006, wherein, it also impugned the sale proceedings initiated by the respondent bank. The said writ petition was disposed with certain directions, making it clear that, if the petitioners complied with the said directions with regard to payment of various amounts to the respondent bank, then, they could avail the benefit of the One Time Settlement scheme. It was made clear in the said judgment that, if the petitioners did not comply with the directions in the judgment, with regard to the payment of the amounts to the respondent bank, then the petitioners would have to pursue their remedies before the DRT, in its challenge against the action taken by the respondent bank. It would appear that the petitioners did not comply with the directions in the said judgment so as to facilitate a settlement of the matter with the respondent bank. A Writ appeal preferred by the petitioners against the said judgment also did not meet with any success, since the same was dismissed by judgment dated 18.10.2006. A Review petition thereafter filed by the petitioners against the judgment in the Writ appeal was also dismissed by an order dated 23.01.2007. Thereafter, the respondent bank took steps to move the District Collector for getting physical possession of the properties that had been mortgaged to it. When the petition filed under Section 14 of the SARFAESI Act did not yield any result, the bank approached this Court through W.P.(C).No.4635/2007, which was allowed by this Court, and the respondent bank was permitted to take physical possession of the properties in question. The judgment in W.P.(C). No.4635/2007 was carried in appeal by the petitioners herein, and on 01.06.2007, by an interim order, a Division Bench of this Court, while admitting the Writ appeal, also permitted the bank to hand over physical possession of the mortgaged properties to the auction purchaser, who, in the meanwhile, had purchased the properties in an auction sale conducted by the respondent bank. The Division Bench of this Court also permitted the bank to issue the sale certificate to the auction purchaser, subject to the result of the Writ appeal. Thereafter, by a judgment dated 07.03.2008, the Writ appeal was disposed with the following directions: