Allowed

Mr. Harikumar v. the Pathanamthitta District Co. Operative Bank Ltd.

Kerala HC13 Jul 2018OP (DRT)/88/2018

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition to restore a Special Application (S.A.) before the Debt Recovery Tribunal to the file. The petitioner had served notice adequately but failed to deposit costs promptly. The Court held that while the dismissal due to non-deposit was procedurally correct, restoration was necessary to adjudicate on merits, setting the deposit condition at Rs. 500.

What did the court decide?

The impugned order dismissing S.A. is set aside; the S.A. is restored to the file on the condition of depositing Rs. 500 with KeLSA.

Mr. Harikumar Vs the Pathanamthitta District Co… — Banking and Recovery | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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FRIDAY, THE 13TH DAY OF JULY 2018 / 22ND ASHADHA, 1940

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AGAINST THE ORDER IN SA 109/2017 of DEBT RECOVERY TRIBUNAL, ERNAKULAM

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PETITIONER

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HARIKUMAR, AGED 38 YEARS, S/O.GOPINATHAN, KALEEKKAL HOUSE, KALLARAKKADAVU, PATHANAMTHITTA P.O., PATHANAMTHITTA-689645.

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BY ADV.SRI.E.A.BIJUMON

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RESPONDENTS:

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THE PATHANAMTHITTA DISTRICT CO OPERATIVE BANK LTD., REPRESENTED BY THE AUTHORIZE OFFICER, PATHANAMTHITTA-689645.

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THE DEBTS RECOVERY TRIBUNAL II, ERNAKULAM, REPRESENTED BY ITS REGISTRAR.

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BY SRI.T.P.PRADEEP, SC, DIST.CO.OP.BANK,PTA

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THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 13-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (DRT).No. 88 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF SA NO.109/2017 FILED BY THE PETITIONER BEFORE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE POSTAL RECEIPT DATED 01-06-2017. EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 11-04-2018. EXHIBIT P4 TRUE COPY OF I.A.NO.1978/2017. EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A.1978/2017 IN SA 109/17 DATED 31-05-2018.

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jjj

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DAMA SESHADRI NAIDU, J.

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O.P.(DRT) No. 88 of 2018 (O)

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Dated: 13^th July 2018

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J U D G M E N T

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The petitioner, a borrower, faced with recovery proceedings,

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filed S.A. No.109 of 2017 before the Debt Recovery Tribunal-II, Ernakulam. The petitioner claims that he served notice on the respondent Bank as ordered by the Court, at first. Later, when none represented the Bank, the Tribunal required the petitioner to serve one more notice. And the matter, for compliance, stood posted to 24.10.2017.

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On 24.10.2017, the petitioner pleaded that he had served

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notice but needed time to produce the proof. But the Tribunal, according to the petitioner, dismissed the S.A. because he did not produce the proof of service.

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Later, the petitioner filed I.A. No.1978 of 2017 to have the S.A. restored to the file. In paragraph 6 of the affidavit, the petitioner did plead that he had served the summons and notice on

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O.P.(DRT) No. 88/2018

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01.06.2017. He attached the proof, too, to the I.A.

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The Tribunal allowed the I.A. on a condition that the petitioner pay Rs.2,000/- as costs to the Kerala Legal Services Authority (KeLSA). As seen from the record, the petitioner could not comply with the direction. Since the order is conditional and self-operating, the Tribunal dismissed the I.A. for non-compliance. Aggrieved, the petitioner has come here.

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The Tribunal, to begin with, has recorded in Ext.P5 impugned order that the order, dated 11.04.2018, is self-operating: it explicitly mentioned that failure to comply with the condition results in automatic dismissal of the I.A. From the very pleadings— paragraph 6 of the writ petition—we can gather that the petitioner approached KeLSA only on 30th May 2018. In fact, he ought to have paid the cost by 18.05.2018, when the matter stood posted for compliance. Under these circumstances, the Tribunal was constrained to dismiss the I.A. Rather, the conditional order, dated 11.04.2018, worked itself out.

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O.P.(DRT) No. 88/2018

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As seen from Ext.P4, the petitioner produced the proof of service before the Tribunal along with I.A. No.1978 of 2017. Evidently, the petitioner served the notice on the Bank four months before the Tribunal dismissed the S.A. The dismissal, we may note, was for the petitioner's failure to produce the proof, rather than non-service.

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True, the petitioner did not comply with the Tribunal’s condition of depositing the amount with KeLSA, to have the case restored.

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All Tribunals and Courts have always sought to consider the matters on merits rather than let them perish on technicalities. So they have often taken a liberal view in restoring the proceedings 'dismissed for default'. To be fair to the Tribunal, I may observe that it has adopted the same approach. So, in the ordinary circumstances, this Court would not have interfered with the Tribunal's discretion.

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O.P.(DRT) No. 88/2018

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Here, the record unmistakably shows that the petitioner

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complied with the first direction of the Tribunal; that is, serving the notice on the Bank. Ext.P4 is the acknowledgment, dated 01.06.2017. And the dismissal of S.A. was on 24.10.2017. In other words, the petitioner served the notice strictly complying with the Tribunal's direction, and that was four months before the Tribunal’s dismissing the S.A. The only lapse the petitioner suffered from is that he could not produce the proof, when demanded.

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The Bank did not dispute the veracity of Ext.P4 receipt. Nor has the Tribunal doubted that in its Ext.P5 order. Under these circumstances, I hold that it is a fit for this Court to marginally alter the Tribunal’s discretionary order. Done so, it only leads to the S.A’s restoration to file. And that only enables the parties to get the issue adjudicates on merits. Nothing more. Procedure, after all, is the hand-maiden of justice.

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That said, I also hold that the petitioner cannot be condoned of all laches. It should have been vigilant in producing the

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O.P.(DRT) No. 88/2018

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proof of service of notice before the Tribunal on the day the

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Tribunal demanded. For it served the notice much earlier and it had the proof with it, too.

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Under these circumstances, the Ext.P5 is set aside; the S.A. is restored to file—on the condition of the petitioner’s depositing Rs.5,000/- with KeLSA. Then, on the petitioner’s producing the proof, the Tribunal will restore the case.

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As shown above, the writ petition stands allowed.

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Sd/DAMA SESHADRI NAIDU JUDGE

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jjj 13/07/2018

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The figure " Rs.5000/- " occurring in the last paragraph at page 5 of the judgment dated 13.07.2018 in O.P.(DRT) No.88/2018 is corrected and substituted as " Rs.500/- " as per order dated 23.07.2018 in I.A. 1288/2018 in O.P.(DRT) No.88/2018.

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Sd/Registrar (Judicial)

Mr. Harikumar v. the Pathanamthitta District Co. Operative Bank Ltd.

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Mr. Harikumar v. the Pathanamthitta District Co. Operative Bank Ltd.

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