Dismissed

M/S Shalimar Restaurant v. M/S Federal Bank Ltd.

Kerala HC16 Oct 2012OP (DRT)/3416/2012

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's challenge to the Debt Recovery Tribunal's final order quantifying liability. The Court held that the petitioner waived jurisdiction objections by agreeing in a prior judgment to submit to the DRT's authority and directed that erroneous orders be challenged via statutory remedies.

What did the court decide?

The Original Petition is dismissed. Liberty granted to file statutory appeal against the DRT's final order if the petitioner contends it is erroneous.

M/S Shalimar Restaurant Vs M/S Federal Bank Ltd. — Banking and Recovery | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934

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OP (DRT). No. 3416 of 2012 (O) ----------------------------OA.140/2007 of DEBT RECOVERY TRIBUNAL, ERNAKULAM

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PETITIONER(S):

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1. M/S. SHALIMAR RESTAURANT 10/54 S.M.STREET, CALICUT REPRESENTED BY ITS PARTNER SHRI. T. SURESHAN S/O. KUNHIKANDAN, KANAKKOOTT HOUSE, CHELAVOOR P.O. KOZHIKODE.

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2. T. SURESHAN, S/O. KUNHIKANDAN KARAKKOTT HOUSE, CHELAVOOR PO, KOZHIKODE.

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BY ADVS.SRI.K.MOHANAKANNAN

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SMT.A.R.PRAVITHA

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RESPONDENT(S):

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1. M/S FEDERAL BANK LTD, NADAKKAVU BRANCH, KOZHIKODE REPRESENTED BY ITS SENIOR MANAGER.

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2. T. ASHOKAN, S/O.KUNHIKANDAN, VADAKOYIL HOUSE, CHELAVOOR PO, KOZHIKODE.

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3. T. VIJAYAN, S/O.KUNHIKANDAN, VADAKOYIL HOUSE, CHELAVOOR PO, KOZHIKODE.

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4. P. VIJAYAN, S/O.RARUKUTTY, PERUMPADAPPIL, MUKKAM PO, KOZHIKODE.

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THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 16-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (DRT). No. 3416 of 2012 (O)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT. P1	-	COPY OF THE JUDGMENT IN O.S. 189/1992 ON THE FILE OF THE SUB COURT, KOZHIKODE DATED 30.09.1995.
EXT. P2	-	COPY OF THE DECREE IN O.S. 189/1992 DATED 30.09.1995.
EXT. P3	-	COPY OF THE JUDGMET DATED 19.01.2001 IN A.S. NO. 230/1997.
EXT. P4	-	COPY OF THE DECREE DATED 19.01.2001 IN A.S. NO. 230/1997.
EXT. P5	-	COPY OF THE O.A. 140/2007 DATED 03.09.2007.
EXT. P6	-	COPY OF THE INTERIM ORDER DATED 25.10.2007.
EXT. P7	-	COPY OF THE LETTER DATED 13.11.2007.
EXT. P8	-	COPY OF THE CHEQUE DATED 13.11.2009.
EXT. P9	-	COPY OF THE REPRESENTATION DATED 28.11.2007.
EXT. P10	-	COPY OF THE CHEQUE DATED 20.11.2007.
EXT. P11	-	COPY OF THE ORDER IN WP(C) NO.30148/2007 DATED 07.04.2008.
EXT. P12	-	COPY OF THE JUDGMENT IN WA 1132/2008.
EXT. P13	-	COPY OF THE OBJECTIONS FILED BY THE 2ND PETITIONER IN O.A. NO.140/2007.
EXT. P14	-	COPY OF THE ORDER DATED 10.08.2010 IN O.A. NO. 140/2007.
EXT. P15	-	COPY OF THE JUDGMENT IN OP(DRT) 241/2010 DATED 26.07.2011.
EXT. P16	-	COPY OF THE FINAL ORDER IN O.A. NO. 140/2007 DATED 21.09.2012.

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RESPONDENTS' EXHIBITS:- NIL

//TRUE COPY//

P.A. TO JUDGE.

ANTONY DOMINIC, J.

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OP(DRT) NO.3416 OF 2012(O)

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--------------------------------------------------

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Dated this the 16^th day of October, 2012

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J U D G M E N T

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Petitioner challenges Ext.P16 final order passed by the Debt Recovery Tribunal in O.A.No.140/2007. It appears that a loan of Rs.4 lakhs was availed of by the petitioner from the respondent Bank in the year 1987. To realise its dues, Bank filed O.S.No.189/1992 before the Sub Court, Kozhikode. That suit was decreed as per Exts.P1 judgment and P2 decree. The appeal filed by the Bank was disposed of by Ext.P3 judgment and Ext.P4 decree of this court in A.S. NO.230/1997.

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Subsequently on the coming into force of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, Bank filed O.A.NO.140/2007 before the DRT, Ernakulam and the Tribunal issued Ext.P5 notice. That was challenged in writ petition(c). No.30148/2007 filed by the petitioner contending that the Tribunal lacked jurisdiction to entertain the matter. The writ petition was finally disposed of by Ext.P11 judgment directing that the Tribunal itself will consider and pass orders on all the issues including the

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OP(DRT).No.3416/2012

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one of jurisdiction. That resulted in Ext.P14 order permitting the Tribunal to reject the petitioner's contention on the maintainability of the application.

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Ext.P4 order was again challenged before this Court in OP (DRT).No.241/2010. That Original petition was disposed of by Ext.P15 judgment. In Ext.P15 judgment this court held thus.

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“The dispute in this writ petition is as to what is the amount due from the petitioners to the Ist respondent Bank as per Ext.P2 decree as modified by Ext.P4 decree passed by this court. The petitioners have filed this writ petition taking the stand that the Debt Recovery Tribunal before whom the matter is pending does not have jurisdiction. The jurisdiction itself depends upon what is the amount due. Therefore, I put it to the parties as to whether they are willing to subject themselves to the jurisdiction of the Debt Recovery Tribunal for the purpose of calculating the amounts due as per the decrees.

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Both counsel for the petitioners and the counsel for the Bank agree for the same. Accordingly, this writ petition is disposed of with a direction to the Debt Recovery Tribunal, Ernakulam to compute the amounts due from the petitioners to the Ist respondent Bank as per Exts.P2 & P4 decrees and pass appropriate orders therein, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment.”

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The tribunal accordingly heard the parties and passed

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Ext.P16 final order, quantifying the liability of the petitioner at

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Rs.32,07,080.27. It is this final order which is challenged in this

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OP(DRT).No.3416/2012

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original petition.

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Counsel for the petitioner again raised the question that the Tribunal lacked jurisdiction to decide the issue and pass Ext.P16 final order. In my view, the plea of want of jurisdiction is not available to the petitioner for the reason that before this court petitioners have agreed to subject themselves to the jurisdiction of the Tribunal. This is evident from Ext.P15 judgment itself. Therefore, I rejected the plea now raised by the counsel for the petitioners.

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Then the counsel contended that the final order passed is erroneous. In my view, if the petitioners have a case that the final order is erroneous, for any reason, the remedy available to them is to seek statutory appellate remedies that are available. With that liberty the Original Petition is dismissed.

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(ANTONY DOMINIC) JUDGE

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vi/

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OP(DRT).No.3416/2012

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:4 :

M/S Shalimar Restaurant v. M/S Federal Bank Ltd.

Case brief

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M/S Shalimar Restaurant v. M/S Federal Bank Ltd.

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