Jose Antony Thottassery v. Anil Kuruvilla & Ors.

The Judgment of the Court was delivered by

Thomas P. Joseph, J.:— The main question urged for a decision in this Original Petition is whether a suit could be withdrawn from the civil court and transferred to the Debt Recovery Tribunal (for short, “the DRT”) constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, “the DRT Act”) for disposal along with an application made to the DRT under Sec. 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, “the SARFAESI Act”)?. Incidentally, the question whether trial of the suits pending in the civil court should be stayed until the application is disposed of by the DRT or vice versa also raised for a decision.

2. The 2nd respondent is sad to have sold 16.350 cents out of a total of 18.40 Ares to the Trespondent as per two sales deeds dated 29.07.2005 and 30.06.2007 1st respondent filed suit in the Munsiffs Court, Thiruvalla (later transferred to the Sub Court, Thiruvalla and re-numbered as O.S No. 77 of 2009) against the 2 respondent for a decree for prohibitory injunction against trespassing into the into the suit property (16.350 cents). In that suit the 2 respondent filed Ext. P3, written statement denying title and possession claimed by the 1 respondent. The 2 respondent, in turn filed O.S No. 155 of 2008 in the court of learned Sub Judge, Thiruvalla against the 1 respondent to set aside sale deed dated 29.07.2005 and for injunction against trespassing into 16.350 cents. 1 respondent filed Ext. P5, written statement in that suit claiming title and possession of the said property as per sale deed dated 29.07.2005 (which is sought to be set aside in O.S No. 155 of 2008). As per the order of learned District Judge, Pathanamthitta, O.S Nos. 155 of 2008 and 77 of 2009 are being proceeded jointly.

3. Respondents 2 and 3 had mortgaged the said 18.40 Ares in favour of the 4th respondent, State Bank of Travancore on 13.12.2004 On 25.01.2007, 4 respondent declared the mortgaged property as non-performing asset in accordance with the provisions of the SARFAESI Act. An Advocate Commissioner was appointed to take over the 18.40 Ares. 2 respondent filed W.P(C) No. 25804 of 2008 against the 4 respondent and others in this Court seeking facility to pay the loan amount in installments. This Court granted relief to the 2 respondent. According to the 4 respondent, there was default on the part of 2 respondent in paying the installments as directed by this Court. Petitioner states that on default in payment of the installments, 4 respondent proceeded to sell the 18.40 Ares mortgaged to it as per provisions of the SARFAESI Act. At that stage responded 2 and 3 sought permission for private sale of the property under Sec. 13(4) of the said Act and the relevant Rules. The 3rd respondent filed W.P(C) No. 20274 of 2009 and this Court directed the 4 respondent to consider that request of 3 respondent. Later, 4 respondent sold the mortgaged property as per provisions of the SARFAESI Act. Petitioner purchased the property. Ext. P1, sale certificate dated 11.09.2009 was issued in favour of petitioner. Petitioner claims that by virtue of Ext. P1, sale certificate he acquired title and possession of the mortgaged property.

4. While so, 1 respondent filed S.A No. 187 of 2010 in the DRT under Sec. 17 of the SARFAESI Act to set aside Ext. P1, sale certificate and for declaration that sale proceedings are illegal. That application (Ext. P12) is pending before the DRT.

5. Petitioner, who, by virtue of Ext. P1, sale certificate, 11.09.2009 claims title and possession of the mortgaged property including the 16.350 cents which is the subject matter of O.S Nos. 155 of 2008 and 77 of 2009 pending in the Sub Court, Thiruvalla got impleaded as additional 3 defendant in O.S No. 77 of 2009 raised appropriate contentions toprotect the title and possession he claims in respect of the 16.350 cents on the strength Ext. P1. sale certificate. According to the petitioner, the issue involved in the suits pending in the civil court and S.A No. 187 of 2010 sending in the DRT are common and inextricably connected so far as the 16.350 cents is concerned and hence, it is necessary that the said suits and application are decided in the same Forum to avoid divergent findings regarding title and possession. In the circumstances, this Original Petition requesting for transfer of the suits from the civil court to the DRT or in the alternative, to stay trial of the suits until the application (S.A No. 187 of 2010) is decided by the DRT.

6. Learned counsel for petitioner has contended that a reading of Secs. 14, 17 and 34 of the SARFAESI Act would show that power of the DRT takes in ancillary power to determine all issues connected with title and possession of the property sold as per sale certificate issued under the said Act. It is contended that under Sec. 34 of the SARFAESI Act, jurisdiction of the civil court to take cognizance of any matter which the DRT or the Appellate Tribunal is empowered under SARFAESI Act to determine is barred. It is further contended that Sec. 35 of the said Act gives overriding effect for the said Act over other laws inconsistent with the provisions of the said Act Hence, it is within the power of the DRT to decide the issues involved in the suite pending in the civil court. Learned counsel has invited my attention to the decisions in United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd., (2000) 7 SCC 357, Indian Bank v. Abs Marine Products (P) Ltd.., (2006) 5 SCC 72, State Bank of India v. Ranjan Chemicals Ltd., (2007) 1 SCC 97 and Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646.

7. In response it is argued by the learned counsel for 1 respondent that issues involved in the suits pending in the civil court and in the application pending in the DRT are different and there is no connection between those matters. According to the learned counsel, power of the DRT under Sec. 17 of the SARFAESI Act is only to decide whether formalities prescribed under Sec. 13 of the said Act and the Rules thereunder are complied or not. The DRT acting under provisions of the SARFAESI Act is not invested with power to entertain a plea of set off or counter claim which is in the nature of a cross suit. Nor has it the power to set aside documents or grant injunction as prayed for in the suits. It is argued that under Sec. 13 of the SARFAESI Act what is involved is only delivery of symbolic possession of property while actual possession is to be obtained in accordance with Sec. 14 of the said Act. In this case while Ext. P1. sale certificate was issued to the petitioner, Sec. 14 of the SARFAESI Act was not invoked and hence if at all there be, what is involved is only delivery of symbolic possession of the property to the petitioner. The civil court is concerned with physical possession of the property. It is pointed out by learned counsel that the decisions relied on by the learned counsel for petitioner concerned provisions of the DRT Act which enable the DRT to entertain a plea of set off or counter claim and hence the Supreme Court held that suits which are in the nature of set off or counter claim which are inextricably connected with an application filed in the DRT under the DRT Act for recovery of amount could be decided by the DRT. It is contended that for the above said reasons it is not necessary to stay trial of the suits until the DRT disposes of the application (S.A No. 187 of 2010) pending before it.

8. The first question I am required to decide is whether the suits pending in the civil court could be transferred to the DRT for disposal along with the application preferred under Sec. 17 of the SARFAESI Act?

9. It is useful to refer Sec. 19 of the DRT Act. Sub-sec. (1) of the said Section deals with the application to the DRT (in accordance with provisions of the DRT Act) preferred by the bank or a financial institution for recovery of debt from any person. Sub-sec. (5) enables the defendant to present a written statement of defence. Sub-sec. (6) deals with the right of defendant to claim set off. Sub-sec. (8) deals with the right of defendant to make a counter claim against the claim of the applicant. Sub-sec. (9) says that a counter claim made under Sub-sec. (8) shall have the same effect as a cross suit so lis to enable the DRT to pass a final order on the original claim and on the counter claim.

10. In short, Sec. 19 of the Act specifically enables the defendant before the DRT, in answer to the application made by the bank or a financial institution for recovery of amount under the DRT Act to raise a plea of set offor counter claim and such counter claim if preferred shall have the same effect as across suit filed by the defendant, required to be decided by the DRT. The SARFAESI Act does not contain any provision enabling the opposite party to raise a plea of set off or counter claim. The decisions relied on by the learned counsel for petitioner and rendered as regards provisions of the DRT Act have to be understood in the above backdrop.

11. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd., there was an application filed by the bank before the DRT under Sec. 19(1) of the DRT Act. Before the bank filed that suit, defendant - company had filed a suit against the bank in the civil court for specific performance of an agreement for release of money, injunction, etc. The suit filed by the defendant - company was treated as a counter claim (against the claim made by the bank in the application filed under Sec. 19(1) of the DRT Act and pending before the DRT) falling under Sub-secs. (8) to (10) of Sec. 19 of the DRT Act. The Supreme Court directed that the suit filed by the defendant - company be transferred to the DRT as it is a counter claim made by the defendant - company against claim made by the bank.

12. In Indian Bank v. Abs Marine Products (P) Ltd.. the suit was not in the nature of a counter claim (under Sec. 19(8) of the DRT Act). Observations in paragraph 9 would show that the suit filed in the civil court and the application made by the bank in the DRT under Sec. 19(1) of the DRT Act were not inextricably connected. The Supreme Court refused to order transfer of the suit pending in the civil court to the DRT. The Supreme Court referred to the decision in United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. and held that subject matter of the two suits should be inextricably connected in ihe sense that the decision in one case would affect the decision in the other and both the parties, plaintiffs and defendants should agree for the independent suit (pending in the civil court) being considered as a counter claim in the bank's application before the DRT (under Sec. 19(1) of the DRT Act) so that, both the proceedings could be disposed of by the DRT.

13. In State Bank of India v. Ranjan Chemicals Ltd., the Supreme Court held that the power inherent in the court on well accepted principles to order a joint trial (if otherwise a joint trial is warranted) did not depend on the volition of parties. In paragraph 10, it is observed that a joint trial can be ordered if it appears to the court that some common questions of law or fact arise in both the proceedings. In that case the bank had filed application under Sec. 19(1) of the DRT Act before the DRT against defendant-company for a certificate for recovery of money. The defendant - company filed suit in the civil court against the bank for recovery of damages. The bank sought transfer of the suit pending in the civil court to the DRT claiming that it is in the nature of a counter claim. Trial court dismissed the application. The High Court dismissed the revision arising there from. The Supreme Court held that in both the suits, common questions are involved and allowing the appeal directed that the suit pending in the civil court be transferred to the DRT treating it as a counter claim having the effect of a cross suit.

14. In Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation all the above cited decisions were considered. The Supreme Court held that DRT is not a civil court, nor a court subordinate to the High Court and hence Secs. 22 to 24 of the Code of Civil Procedure (for short, “the Code”) could not apply. It further held that even where the two matters are inextricably connected, (there also, what is considered is the DRT Act), consent of parties is required for transfer of the suit from the civil court to the DRT. The Supreme Court held that State Bank of India v. Ranjan Chemicals Ltd. (where it is held that power of the court to transfer does not depend on the volition of parties) was bound by the decision in Indian Bank v. Abs Marine Products (P) Ltd.. (where it was held that consent of parties is required) and that it could not take a contrary view (from Indian Bank v. Abs Marine Products (P) Ltd..) as both the decisions were rendered by Benches of co-ordinate strength.

15. Now, therefore, even so far as transfer of a suit pending in the civil court to the DRT where an application under Sec. 19(1) of the DRT Act is pending, the decision in Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation prevails and hence even if the suit pending in the civil court and the application made before the DRT under Sec. 19(1) of the DRT Act are inextricably connected, consent of parties is required for transfer of the suit from the civil court to the DRT.

16. Now the question is whether the above decisions or any of it would apply to-the fact situation in this case. As first above stated, I do not find any provision in the SARFAESI Act which enables the opposite party to make a plea of set off or counter claim in the DRT. If that be so, a suit filed in the civil court even if it be in the nature of cross suit as against an application made before the DRT under Sec. 17 of the SARFAESI Act, question of transfer of the suits to the DRT does not arise. So much so, and since it is held that the DRT is neither a civil court, nor a court subordinate to the High Court for the exercise of power under Secs. 22 to 24 of the Code the question of transfer of a suit pending in the civil court to the DRT for a decision, along with an application made under Sec. 17 of the SARFAESI does not arise. The DRT while exercising power under the SARFAESI Act has no jurisdiction to entertain suits even in the nature of cross suits. In the circumstances, request to transfer the suits from the Sub Court, Thiruvalla to the DRT cannot be allowed even in exercise of power under Article 227 of the Constitution.

17. Nor can the application made to the DRT under Sec. 17 of the SARFAESI Act be transferred for a decision to the civil court. That is because Sec. 34 of the said Act bars jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which the DRT (or Appellate Tribunal) is empowered by or under the said Act to determine.

18. Then the question is whether the alternative prayer to stay trial of the suits pending in the Sub Court, Thiruvalla until disposal of S.A No. 187 of 2010 by the DRT should be granted? It is in connection with the above alternative prayer that learned counsel for petitioner contended that the DRT is competent to decide whether pursuant to Ext. P1. sale certificate petitioner got possession of the property mentioned therein. Learned counsel has invited my attention to Ext. P1 and the expression used therein. Learned counsel has also invited my attention to Sec. 13 of the SARFAESI Act and Rule 8 of the Security Interest (Enforcement) Rules, 2002 (for short, “the Rules”) to contend that so far as taking possession of property declared as non-performing asset under the provisions of the SARFAESI Act is concerned, what is required is only to comply with the requirements of Sec. 13 of the SARFAESI Act and Rule 8 of the Rules and that the Act or Rules does not contemplate a process for delivery of possession as in the case of execution of a decree for possession of immovable property. According to the learned counsel once provisions of Sec. 13 of the SARFAESI Act Rule 8 of the Rules are complied, there is a transfer of possession of the immovable property involved by operation of law and to claim possession of such property, nothing more is required. That question, according to the learned counsel is a matter which the DRT is required to decide in S.A No. 187 of 2010. It is also contended that the said question cannot be decided by the civil court in view of bar of jurisdiction under Sec. 34 of the SARFAESI Act.

19. Learned counsel for 1 respondent would contend that Sec. 13 of the SARFAESI Act deals with only symbolic possession of immovable property while a party desirous of getting actual possession has to proceed in accordance with Sec. 14 of the said Act. It is contended by the learned counsel that so far as the suits pending in the civil court are concerned, questions to be decided is whether 1 respondent has title and possession of the 16.350 cents by virtue of sale deeds dated 29.07.2005 and 30.06.2007, and that has nothing to do with the symbolic possession referred to in Sec. 13 of the SARFAESI Act and which petitioner claims to have obtained under Ext. P1.

20. Sec. 13 of the SARFAESI Act deals with enforcement of security interest by the secured creditor without intervention of the court. Clause (a) of Sub-sec. (4) states that the secured creditor may “take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realising the secured asset”. Clause (c) of Sub-sec. (4) states that the secured creditor may appoint any person “to manage the secured asset the possession of which has been taken over by secured creditor”. Sub-sec. (6) of Sec. 13 states that “any transfer of secured asset after taking possession thereof or take over of management under Sub-sec. (4) by the secured creditor or by the manager on behalf of the secured creditors shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset”. Sec. 14 of the SARFAESI Act enables the secured creditor to require the assistance of the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction the secured asset or documents relating thereto are (which is to be taken possession) to take possession of such secured asset or document or to be sold or transferred. Rule 8(1) of the Rules states that where the secured asset is an immovable property, the authorised officer shall “take or cause to be taken possession by delivering a possession notice prepared as nearly as possible in Appendix IV to these Rules, to the borrower and by affixing the possession notice on the outer door or at such conspicuous place of the property”. Sub-rule (2) says that “the possession notice as referred to in Sub-rule (1) shall also be published in two leading news papers, one in vernacular language having sufficient circulation in that locality, by the authorised officer”. Rule 9 deals with the sale confirmation, issue of sale certificate and delivery. Sub-rule (6) provides for issue of certificate of sale of immovable property in favour of the purchaser in the form given in Appendix V to the Rules. Sub-rule (9) states that “the authorised officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in Sub-rule (7)” of Rule 9.

21. Reference can be made to Ext. P1, sale certificate issued in favour of the petitioner by the authorised officer on 11.09.2009 There, it is stated that” from now onwards you may possess, hold and enjoy the property as absolute owner and effect mutation in your name and pay absolute owner ………”. It is by virtue of the said recital in Ext. P1, sale certificate issued in accordance with Appendix V of the Rules and the provisions of Sec. 13 of the SARFAESI Act and Rules 8 and 9 of the Rules that petitioner contends that by operation of law he has got possession of the mortgaged property-18.40 Ares.

22. Learned counsel for 1 respondent has a contention that even if Sec. 13 of the SARFAESI Act and Rules 8 and 9 of the Rules are to be invoked, there is no case that possession was taken by publication of notice in Appendix IV and publication in the news papers as required by Rule 8 of the Rules and hence, it could not be said that even by operation of law the secured creditor and petitioner got possession of the property.

23. Sec. 17(1) of the SARFAESI Act deals with the right of appeal by any person aggrieved by any of the measures referred to in Sub-sec. (4) of Sec. 13 taken by the secured creditor or his authorised officer and Sub-sec. (3) says that if the DRT “after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in Sub-sec. (4) of Sec. 13, taken by the secured creditor are not in accordance with the provisions of this Act and the Rules made there under, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order declare the recourse to any one or more measures referred to in Sub-sec. (4) of Sec. 13 taken by the secured assets as invalid and restore the possession of the secured assets to the borrower or restore the management of the secured assets to the borrower, as the case may be and pass such order as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under Sub-sec. (4) of Sec. 13”.

24. S.A No. 187 of 2010 is pending decision before the DRT under Sec. 17 of the SARFAESI Act. The DRT has to go into all questions which it is required to decide under Sec. 17(3) of the Act. The DRT has to decide whether any of the measures referred to in Sub-sec. (4) of Sec. 13, taken by the secured creditor, i.e, in the matter of taking possession of the secured asset and transferring title and possession to the petitioner, if any, are not in accordance with the provisions of the SARFAESI Act and the Rules. If necessary, it is open to the DRT to direct restoration of possession of the secured asset to the borrower, The DRT can also declare the recourse to any one or more measures referred to in Sub-sec. (4) of Sec. 13 taken by the secured assets as invalid and pass appropriate orders in the matter. The above matters, in view of the bar of jurisdiction under Sec. 34 of the SARFAESI Act cannot be decided by the civil court.

25. Having regard to the nature of contentions raised in the suits pending in the Sub Court, Thiruvalla and at least in relation to the subsequent events (alleged sale of 18.40 Ares including the suit property, its taking possession by the 4 respondent and transfer of title and possession to the petitioner in accordance with the provisions of the SARFAESI Act and Rules), decision of the DRT in S.A No. 187 of 2010 may have a bearing on the decision the civil court is to take in the suits pending before it or atleast, in moulding reliefs in case the civil court decides to grant relief in the suits. Since the claim of title and possession raised by petitioner as additional 3 defendant in O.S No. 77 of 2009 is also an issue in that suit it is necessary and appropriate that trial of the suits is kept in abeyance until S.A No. 187 of 2010 is decided by the DRT. For, I said that the decision in S.A No. 187 of 2010 may have a bearing in deciding the issues involved in the suite pending in the civil court or in granting/moulding reliefs prayed for therein. In that view of the matter, the appropriate course is to stay trial of the suits pending in the Sub Court, Thiruvalla. No doubt, so far as Sec. 10 of the Code is concerned, the said provision applies only when different ‘suits’ are pending and the issue in one suit is directly and substantially in issue in the other ‘suit’ also but the proceeding pending in the DRT is not a ‘suit’. But this Court can, invoking power under Article 227 of the Constitution pass appropriate orders in the matter having regard to the relevant circumstances. I am inclined to think that this is a case where the power under Article 227 of the Constitution is to be invoked as prayed for in the Original Petition….

26. This Original Petition is allowed as follows:

i. The request for transfer of O.S Nos. 155 of 2008 and 77 of 2009 from the Sub Court, Thiruvalla to the Debt Recovery Tribunal, Eraakulam is rejected.

ii. It is directed that trial of the suits above mentioned will stand inabeyance until the Debt Recovery Tribunal finally disposes of S.A No. 187 of 2010.

iii. The Debt Recovery Tribunal, Ernakulam is directed to dispose of S.A No. 187 of 2010 as early as possible after giving both sides opportunity to present their case and adduce evidence, if any.

iv. After disposal of S.A No. 187 of 2010, learned Sub Judge, Thiruvalla shall conduct trial of O.S No. 155 of 2008 and 77 of 2009 and take appropriate decision in the matter as provided under law.