OP (DRT)/106/2025 of K. MOIDEEN KUTTY HAJI, Vs BANK OF INDIA, on 3 April 2025

JUDGMENT

Petitioner has approached this Court challenging Ext.P3 order of the Debts Recovery Tribunal-I Ernakulam (the Tribunal) in IA No.745/2025 in SA No.146/2025. The primary contention taken by the learned counsel appearing for the petitioners is that a substantial portion of the property against which proceedings are initiated under the provisions of the SARFAESI Act are agricultural lands and therefore those lands cannot be subject matter of proceedings under the SARFAESI Act. The petitioners relied on tax receipts and certificates issued by the Agricultural Officer to substantiate their contention before the Tribunal that the lands in question are agricultural lands. They have also filed an application for appointment of an Advocate Commissioner for the purposes of ascertaining the nature of the land.

2. According to the learned counsel appearing for the petitioners, the Tribunal without considering the merits of any of the contentions taken by the petitioners and without allowing the application for appointment of an Advocate Commissioner, dismissed the application for stay prompting the petitioners to approach this Court under Article 227 of the Constitution of India.

3. The learned counsel appearing for the respondent bank submits that a reading of Ext.P3 order will show that the Tribunal has considered all the contentions taken by the petitioners before the Tribunal. It is submitted that the Tribunal has also noted that the petitioners have produced translations of the tax receipt relied upon by them before the Tribunal by describing ‘puncha lands’ as agricultural lands. It is submitted that the Tribunal has correctly found that the word ‘puncha’ refers to dry land. It is submitted that the Tribunal has also found that the certificate of the Agricultural officer which was relied on before Tribunal was issued only on 04.02.2025 and was without carrying out inspection of the lands in question. It is submitted that the Tribunal has also found that none of the petitioners are agriculturists and they are in the business of Government Contractors. It is submitted that the Tribunal has taken the correct view and there is no perversity or other illegality or failure to exercise any jurisdiction vested with the Tribunal warranting interference at the hands of this Court under Article 227 of the Constitution of India. It is also submitted that the petitioners did not press the application filed by them for appointment of an Advocate Commissioner before the Tribunal and agreed to argue the interlocutory Application for stay (IA No.745/2025).

4. The learned counsel appearing for the petitioners would submit in reply that Ext.P3 order of the Tribunal is liable to be interfered with under Article 227 of the Constitution of India. It is submitted that the finding of the Tribunal that the Agricultural Officer has issued the certificate without conducting local inspection is itself incorrect. It is submitted that the contention now taken before this Court by the learned counsel for the respondent bank that the petitioners have not pressed the application for appointment of an Advocate Commissioner is absolutely incorrect and the counsel appearing for the petitioners before the Tribunal had actually sought for appointment of an Advocate Commissioner before the Interlocutory Application was heard and decided by the Tribunal.

5. Having heard the learned counsel for the petitioners and the learned counsel appearing for the respondent bank, I am of the view that the petitioners have not made out any case for interference with Ext.P3 order in the exercise of jurisdiction vested with this Court under Article 227 of the Constitution of India. It is not the law that every error committed by the Tribunal or a court subordinate to this Court should be corrected in proceedings under Article 227 of the Constitution of India. It is only when the order of the Tribunal or the Subordinate court demonstrates any perversity or ignorance of any fundamental legal principle or where the Tribunal or the Subordinate court exercises a jurisdiction not vested in it or fails to exercise the jurisdiction vested in it leading to manifest arbitrariness that this Court will exercise jurisdiction under Article 227 of the Constitution of India to correct such orders. A perusal of Ext.P3 order does not suggest to me that the Tribunal has committed any such error in the facts of this case. The petitioner has an adequate and effective alternate remedy against Exhibit P3, under Section 18 of the SARFAESI Act. Taking all the aforesaid facts cumulatively into consideration, I find no ground to interfere with Exhibit P3.

6. At this stage, the learned counsel appearing for the petitioners would submit that the petitioners may be given some time to approach the Debts Recovery Appellate Tribunal. I consider this request of the learned counsel appearing for the petitioners to be reasonable. Therefore, I direct that further proceedings under the SARFAESI Act shall remain suspended for a period of two weeks to enable the petitioners to approach the Debts Recovery Appellate Tribunal by challenging Exhibit P3 order. I also direct that the period during which this Original Petition was pending before this court namely from 18.03.2025 till today (03.04.2025) shall be excluded for the purpose of determining any period of limitation within which the petitioners had to approach the Debts Recovery Appellate

Tribunal. This Original Petition will stand disposed of accordingly. sd/- GOPINATH P. JUDGE Nsd

APPENDIX OF OP (DRT) 106/2025 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE MEMORANDUM OF S.A.NO.146/2025. FILED UNDER SECTION 17(1) OF THE SECURITIZATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002, DATED 21.2.2025 ALONG WITH ANNEXURES Exhibit P2 A TRUE COPY OF THE STAY PETITION IN I.A. NO. 745/2025 IN S.A. NO. 146/2025 DATED 21.2.2025 Exhibit P3 A TRUE COPY OF THE REJECTION ORDER DATED 28.02.2025 IN I.A. NO. 745/2025 IN S.A. NO.

Exhibit P4 A TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT BANK DATED 28.02.2025 IN I.A. NO. 746/2025 IN S.A. NO. 146/2025