Review petition challenging DRT order was rejected. Court held review is not for rehearing on new arguments or unsubstantiated assertions regarding symbolic vs actual possession made for the first time.
Review petition rejected; no costs awarded.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939
RP.No. 447 of 2017 () IN OP (DRT).92/2016
AGAINST THE JUDGMENT IN O.P(DRT).92/2016 DATED 29-03-2017 OF HIGH COURT OF KERALA; AGAINST THE ORDER DATED 21.04.2016 IN S.A.NO.477 OF DEBTS RECOVERY TRIBUNAL, ERNAKULAM.
PETITIONER(S):-
1. MR.SIVAKUMAR.G., AGED 54 YEARS, S/O P.V. GOPINATHAN NAIR, AISWARYA, THALAKODE P.O, MULANTHURUTHY, ERNAKULAM-682 314.
2. MRS. LALITHA R. VARMA, AGED 53 YEARS, W/O SIVAKUMAR G, AISWARYA, THALAKODE P.O, MULANTHURUTHY, ERNAKULAM-682 314.
3. POWERTURN ENGINEERS PVT. LTD, C.C. 31/670A, S.A ROAD, VYTTILA P.O, REPRESENTED BY ITS MANAGING DIRECTOR, MR. SIVAKUMAR.G.
BY ADV. SRI.P.I.DAVIS.
RESPONDENT(S):-
1. THE FEDERAL BANK LTD., FEDERAL TOWERS, ALUVA, 683 101, REPRESENTED BY IT'S CHAIRMAN AND MANAGING DIRECTOR.
2. THE AUTHORISED OFFICER & CHIEF MANAGER, THE FEDERAL BANK LTD., BYTTILA - 682 019.
3. THE DEBTS RECOVERY TRIBUNAL-I, [KERALA & LAKSHADWEEP], 5TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR,
ERNAKULAM - 682 036, REPRESENTED BY ITS REGISTRAR.
4. JM JM FINANCIAL ASSET RECONSTRUCTION COMPANY PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND SECTION 3 OF THE SARFAESI ACT, 2002 AND ACTING IN ITS CAPACITY AS TRUSTEE OF “JMF ARC-FEDERAL BANK MARCH 2013-TRUST” HAVING ITS REGISTERED OFFICE AT 7TH FLOOR, CNERGY, APPASAHEB MARATHE MARG, PRABHADEVI, MUMBAI - 400025 REPRESENTED BY MS.RUPALI UTGIKAR, ASSISTANT VICE PRESIDENT.
R1 & R2 BY ADVS. SRI.MOHAN JACOB GEORGE
R4 BY ADVS. SRI.P.RADHAKRISHNAN
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:-
K. Vinod Chandran, J
--------------------------------------------------------------------R.P.No.447 of 2017 in O.P.(DRT) No.92 of 2016 (O)
Dated, this the 08th day of June, 2017
ORDER
The review petition has been filed on the ground that there is an error apparent on the face of the record insofar as this Court having not noticed the fact that the respondent-Bank had specifically pleaded before the Tribunal that they had taken possession of the property. To substantiate the contention, the learned Counsel appearing for the review petitioners would take me through Exhibit P2, written statement filed by the defendants in S.A.No.477 of 2010, and Exhibit P10, copy of I.A.No.1310 of 2016 filed in the said S.A.
“So defendants were compelled to take possession of the security properties. It was made by affixture of the possession notice in the secured assets, issuance of the notice to parties and by publication of the same in two leading news papers including one in vernacular”.
The possession notice as affixed in the property is also pointed out, produced as an Annexure, to Exhibit P10.
RP.447/2017 in OP(DRT).92/2016
8 SCC 612].
RP.447/2017 in OP(DRT).92/2016
“19. Right of borrower to receive compensation and costs in certain cases.- If the Debts Recovery Tribunal or the Court of District Judge, on an application made under section 17 or section 17A or the Appellate Tribunal or the High Court on an appeal preferred under section 18 or section 18A, holds that the possession of secured assets by the secured creditor is not in accordance with the provisions of this Act and rules made thereunder and directs the secured creditors to return such secured assets to the concerned borrowers, such borrower shall be entitled to the payment of such compensation and costs as may be determined by such Tribunal or Court of District Judge or Appellate Tribunal or the High Court referred to in section 18B”.
(highlight supplied)
for damages would arise only when the possession of secured assets is found to be not in accordance with the provisions of the Act and Rules and there is a return of such secured assets directed to the borrowers. This definitely contemplates the return of possession of the
RP.447/2017 in - 4 - OP(DRT).92/2016
property to the borrowers, who were divested of such possession. Hence, a valid claim of damages, as contemplated under Section 19, would arise only if physical possession has been taken by the respondent-Bank and the borrowers deprived of the enjoyment of the property. The petitioners' attempt is to assert that they never entered the property after the affixture. That remains in the realm of an unsubstantiated assertion and in any event that was not occasioned by the Bank; who was careful not to divest the petitioners of the possession. It is also pertinent that the said assertion is an after thought at the stage of the review and it was neither pleaded before the Tribunal or this Court.
Considering the confined, circumscribed jurisdiction in review, the unsubstantiated pleadings taken for the first time, at the stage of review as also the fallacious legal grounds, the review petition would stand rejected. No Costs.
Sd/K.Vinod Chandran Judge.
vku/-
[true copy]
2 issues framed by the court
Whether a review petition can be granted based on new arguments regarding symbolic possession not raised before the Tribunal.
Whether a claim for compensation under Section 19 of the SARFAESI Act arises when there is no return of actual possession.
Colour shows how this judgement treated each authority
State of West Bengal v. Kamal SenguptaReferred¶33
State of West Bengal v. Kamal Sengupta [(2008) 8 SCC 612] · Who else cites this
MR. SIVAKUMAR.G.
MRS. LALITHA R. VARMA
POWERTURN ENGINEERS PVT. LTD
K. VINOD CHANDRAN
As recorded by the court registry
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