Disposed

Vijesh P.G v. the Federal Banak Ltd.

Kerala HC6 Jan 2017OP (DRT)/158/2015

Case brief

AI extract

What is this about?

The Court closed the original petition seeking to set aside notice proceedings and a sale notice under the SARFAESI Act. It held that the sale notice could not be set aside via Article 226 due to the sale's effectuation and advised relief on sale discrepancies or scheme violations to be sought before the Company Court or DRT.

What did the court decide?

The original petition was closed; no relief granted for the notices sought to be set aside.

Vijesh P.G Vs the Federal Banak Ltd. — Banking and Recovery | Kerala HC (2017)

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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 K.VINOD CHANDRAN

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FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938

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OP (DRT).No. 158 of 2015 (O)

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OA. NO 427/2013 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM

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PETITIONER(S):

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1. VIJESH P.G., AGED 41 YEARS, S/O.GEORGE P.J., PULIKKALPARAMBIL HOUSE, PALLATH ROAD,

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THAMMANAM P.O, PIN-682 032, ERNAKULAM DISTRICT.

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2. CHITHRA JOSEPH,AGED 37 YEARS, W/O.VIJESH P.G., PULIKKALPARAMBIL HOUSE, PALLATH ROAD, THAMMANAM P.O, PIN-682 032, ERNAKULAM DISTRICT.

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BY ADV. SRI.P.A.SALIM

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RESPONDENT(S):

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1. THE FEDERAL BANK LTD., REGISTERED OFFICE ALUVA, BRANCH MADAVANA,

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PANAGADU, PIN-682 503, ERNAKULAM DISTRICT.

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2. APPLE A DAY PROPERTIES PVT. LTD., APPLE TOWER, PADIVATTOM, N.H.BYPASS,

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EDAPPALLY, COCHIN-682 024, REPRESENTED BY THE ADMINISTRATOR APPOINTED BY HIGH COURT OF KERALA.

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R1 BY ADVS. SRI.A.ANTONY SMT.LEELAMMA ANTONY R2 BY ADV. SRI.VINOD MADHAVAN

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THIS OP (DEBT RECOVERY TRIBUNAL) HAVING BEEN FINALLY HEARD ON 06-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP (DRT).No. 158 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : TRUE COPY OF THE ORDER IN OA NO.427/2013 OF THE DEBT RECOVERY TRIBUNAL, ERNAKULAM DATED 23-9-2014.

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P2 : TRUE COPY OF THE NOTICE ISSUED BY THE DEBT RECOVERY TRIBUNAL, ERNAKULAM IN DRC NO. 4134/FB/EKM.

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P3 : TRUE COPY RELEVANT PAGES OF THE MCA NO.22/2013 AND CONNECTED CASES.

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P4 : TRUE COPY OF THE ORDER OF THE HON'BLE HIGH COURT OF KEALA IN MCA NO.22/2013 AND CONNECTED CASES DATED 10-3-2014.

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P5 : TRUE COPY OF THE NOTICE ISSUED TO THE 1ST RESPONDENT BANK BY THE 2ND RESPONDENT DATED 22-3-2014.

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P6 : TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT BANK BEARING NO.EKML/EKM/SAR-2016/70/2015 DATED 3-9-2015.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.A.TO JUDGE

sts

K.VINOD CHANDRAN, J.

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=====================

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O.P(DRT)No.158 of 2015 - D

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========================= Dated this the 06^th day of January, 2017

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J U D G M E N T

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The petitioners are before this Court seeking setting aside of Exts.P2 and P6 proceedings issued against the petitioners and the apartment owned by the petitioners. Ext.P2 is a notice of demand issued to the Certificate Debtor by the Recovery Officer of the Debts Recovery Tribunal (Kerala and Lakshadweep) under DRC No.4134 in OA No.427/2013 wherein the petitioners are the sole respondents. Ext.P6 is a sale notice by the Bank under the SARFAESI Act. It is also submitted that the sale has taken place and confirmed too.

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The petitioners have, on the directions of this

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Court, sought to implead the auction purchaser. However, the same may not be necessary going by the specific averments taken by the petitioner.

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O.P(DRT)No.158 of 2015 - D

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The petitioners, in the original petition, has taken up a contention that the 1^st petitioner was the employee of the 2^nd respondent and the 2^nd respondent had availed of a loan from the 1^st respondent in the name of the petitioners for an apartment, which was also transferred in the name of the petitioners. It is stated that the instalments to the loan were also made by the 2^nd respondent Company and that on default being committed, an OA was filed before the Debt Recovery Tribunal (DRT). It is categorically stated that the filing of the OA was informed to the 2^nd respondent by the petitioners and though there was an assurance given by the 2^nd respondent that the same would be defended, nothing was done and an ex parte order was passed by the DRT in the OA filed against the respondents.

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The Bank had, simultaneous to the proceedings

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before the DRT initiated proceedings under the SARFAESI Act

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O.P(DRT)No.158 of 2015 - D

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and a sale notice was issued at Ext.P6. The property itself was sold to the additional respondent sought to be impleaded. The prayer in the writ petition is to set aside Ext.P2 and the notice at Ext.P6. The final order in the O.A is produced at Ext.P1 and without challenging the same, there cannot be a setting aside of Ext.P2, under Article 226 of the Constitution of

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India, which notice of demand to the Certificate debtor is issued by the Recovery Officer of the DRT.

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Ext.P6 also cannot be set aside since admittedly

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there is a sale effected to the additional respondents sought to be impleaded without any amendment made challenging the sale proper. Further for setting aside the sale, the petitioners would have to avail remedies available under the SARFAESI Act, under Section 17 before the DRT itself.

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It has to be noticed that the Administrator, who appeared on behalf of the 2^nd respondent also submitted that

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O.P(DRT)No.158 of 2015 - D

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there is some discrepancies in the sale effected, since the description of the property as seen from Ext.P1 and Ext.P6 sale notice, differs considerably. The learned Standing Counsel for the respondent Bank clarifies that the schedule in Ext.P1; is one drawn up before completion of the apartment complex and the sale made of the property is after completion, which includes the car shed also.

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In any event, the original petition as noticed

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above does not survive for consideration now. There are also submissions made with respect to the compromise scheme as provided by the Company Court in the matter of M/s. Apple A Day Properties Pvt. Ltd in Company Petition No.4 of 2014. If any violation of the scheme is alleged, then necessarily, the petitioners would have to approach the Company Court.

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O.P(DRT)No.158 of 2015 - D

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Leaving open such remedy before the Company

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Court or before any other Forum, the original petition would

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stand closed.

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Sd/- K. VINOD CHANDRAN, JUDGE

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SB/07/01/2017

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// true copy //

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P.A to Judge

Vijesh P.G v. the Federal Banak Ltd.

Case brief

What is this about?

What did the court decide?

Vijesh P.G v. the Federal Banak Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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