THULASEEDHARAN K S/O KUNJIRAMAN Vs. AUTHORIZED OFFICER

JUDGEMENT

(1.) Applicant in S.A.No.184 of 2017 on the files of the Debts Recovery Tribunal-2, Ernakulam is the petitioner in this original petition. The respondents are the defendants in the said proceedings. The petitioner borrowed money from the second respondent financial institution, and when the petitioner failed to repay the dues to the second respondent, they have initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the Act) against the securities for realisation of their dues. Ext.P1 is the possession notice issued by the authorised officer of the second respondent in this connection. S.A.No. 184 of 2017 was instituted challenging Ext.P1 possession notice.

(2.) On 14.06.2017, the Tribunal passed an interim order staying further proceedings under the Act on condition that the petitioner shall pay to the second respondent a sum of Rs.2, 00, 000/- on or before 08.08.2017. The specific case of the petitioner is that he had paid the said amount to the second respondent on 08.08.2017 and the said fact was brought to the notice of the Tribunal on 09.08.2017. It is alleged by the petitioner that though the counsel for the second respondent disputed on 09.08.2017 the submission made by the counsel for the petitioner as to the compliance of the condition imposed by the Tribunal in terms of the interim order dated 14.06.2017, the Tribunal extended the interim order having regard to the submission made by the counsel for the petitioner. It is stated by the petitioner that later when the 'A' diary of 09.08.2017 was verified, it was found recorded therein that since the counsel for the second respondent pointed out that the petitioner has not complied with the condition imposed by the Tribunal in terms of the interim order dated 14.06.2017, the interim order passed by the tribunal on 14.06.2017 has been vacated. It is also stated by the petitioner that later in the course of the proceedings, the petitioner preferred I.A.No.1971 of 2017 seeking orders for referring the matter to the Lok Adalath for making an attempt to settle the matter with the second respondent. It is stated that on 10.11.2017, when the matter was taken up, the petitioner pressed for an order in I.A.No. 1971 of 2017, whereas the counsel for the second respondent opposed the prayer made by the petitioner in the said interlocutory application. Since the counsel for the second respondent opposed the interlocutory application, the Tribunal dismissed I.A.No. 1971 of 2017. It is stated by the petitioner that in the order passed by the Tribunal on 10.11.2017 on the said interlocutory application, it was, however, seen observed by the Tribunal that since the petitioner wanted to settle the account, an opportunity was given to the petitioner to approach the second respondent and when the matter was taken up for orders on 10.11.2017, the counsel for the second respondent submitted that no settlement was arrived at between the parties. According to the petitioner, the matter was never the subject matter of discussion at any point of time in the proceedings before the Tribunal prior to 10.11.2017 and the reason recorded in the order passed on the interlocutory application is therefore, suspicious. It is further stated by the petitioner that later on 211.2017, when the matter came up, the counsel for the petitioner represented that a written argument note is being filed in the matter. It is stated that when the matter was taken up, the counsel for the second respondent was not present before the Tribunal and he was represented by another lawyer on that day. It is the case of the petitioner that copy of the argument notes, in the circumstances, was given by the counsel for the petitioner to the counsel, who represented the counsel for the second respondent in the presence of the Tribunal and the Tribunal has accordingly recorded the said fact in the proceedings dated 211.2017 and the matter was adjourned for final hearing accordingly to 13.12017. It is stated that thereupon the counsel who represented the counsel for the second respondent returned the copy of the argument notes served on her, informing the counsel for the petitioner that copy of the argument notes would be received by the counsel for the second respondent himself in the course of the day, after making appropriate endorsement on the argument notes. It is stated that after sometime, the counsel for the second respondent met the counsel for the petitioner and had received the copy of the argument notes after making necessary endorsement on the argument notes and the same was filed in the Tribunal thereafter on the same day itself. It is stated by the petitioner that it was found recorded, however, in the 'A' Diary of the relevant day that a copy of the argument notes furnished by the counsel for the second respondent was received back by the counsel for the petitioner, after representing the matter before the Tribunal. According to the petitioner, there was absolutely no occasion for the Tribunal to make such a proceedings on 211.2017. It is stated by the petitioner that for the aforesaid reasons, the petitioner believes that the Tribunal is biased towards the second respondent and he apprehends that there will not be a fair decision therefore in the securitization application. The petitioner, therefore, seeks orders quashing the proceedings of the Tribunal dated 9.8.2017 and 211.2017 and transferring S.A.No.184 of 2017 from the files of Debts Recovery Tribunal-2, Ernakulam to the files of Debts Recovery Tribunal-1, Ernakulam.

(3.) When the original petition was instituted, the Registry entertained a doubt as to whether an original petition could be filed for transferring an application instituted under section 17 of the Act from one Tribunal to another Tribunal and consequently, placed the matter for orders before the Court. On 08.01.2018, when the matter came up before the Court for orders, the learned counsel for the petitioner submitted that prayer for transfer of the proceedings is only one of the prayers in the original petition and no objection is raised by the Registry as to the maintainability of the original petition as regards the challenge against the proceedings dated 09.08.2017 and 22.11.2017. In the circumstances, the Registry was directed to number the original petition, making it clear that the objection raised as to the maintainability of the original petition will be decided at the time of hearing.