Access to justice is a fundamental right, and the lack of a functioning adjudicatory mechanism can deny this right. The court can exercise its jurisdiction under Article 226 and 227 of the Constitution of India to remedy the situation and ensure the full and final settlement of the amounts due.

JUDGMENT :

BECHU KURIAN THOMAS, J.

1. Petitioner was the applicant in O.A. No. 593/2017 before the Debt Recovery Tribunal-I, Ernakulam. The final order in the said original application was rendered on 30.08.2018 pursuant to which a recovery certificate was issued. While the recovery proceedings were continuing, respondents 3 to 5, who were the borrowers and guarantors, cleared the entire liability. On repaying the entire liability, petitioner filed an application before the Tribunal seeking to recall the recovery certificate issued by the Tribunal as well as for the return of original sale-deed No. 525/1/2013 of the Sub Registry Office, Kochi, produced and marked as Ext.A9 before the Tribunal. The grievance of the petitioner is that due to the non-functioning of the Tribunal for the last several months, petitioner is unable to abide by their obligation to return the title deeds to respondents 3 to 5. It is in such circumstances that they have invoked the jurisdiction of this Court under Article 227 of the Constitution of India.

2. Advocate C.M. Ebrahim, who appeared for respondents 3 to 5 submitted that they were the borrowers and had with great difficulty cleared the entire liability due to the bank on the basis of an understanding and they are entitled to receive the documents of title submitted before the Tribunal. It was pointed out that the delay in getting the title deeds is causing great prejudice to them and the absence of the Presiding Officers of the Tribunal has upset their entire financial planning.

3. Having considered the contentions raised and on a perusal of the pleadings, I am of the view that this is a fit case where the jurisdiction of this Court under Article 226 of the Constitution of India can be invoked.

4. There are two Debts Recovery Tribunals for the entire State of Kerala. Unfortunately, for the last several months, both Tribunals in Kerala are not functioning, bringing to a halt an opportunity for the litigants to have access to a court of law and, inevitably, great misery to the litigant public. The litigants - both the financial institutions as well as the borrowers/guarantors, are being put to irreparable hardships. Without a forum to agitate their grievance, the litigants are facing deprivation of their property and the Central Government has shown scant regard to the hardships and trauma of the litigants. The statutory mandate of appointing Tribunals are being ignored without any reason.

5. The unfortunate situation in the functioning of the Debts Recovery Tribunal in Kerala started in March, 2021 with one of the two Presiding Officers of the Tribunal resigning/retiring. The situation was compounded when the second Presiding Officer also followed suit in September, 2021. Thus a grim situation has been prevailing in Kerala for the past more than five months, if not almost 10 months and the litigants are knocking at the doors of this Court repeatedly seeking to allay their grievances. Though in between, sometime in the month of October, 2021, on the query of this Court, the Central Government had informed that the Presiding Officers will be appointed soon, nothing happened. Later, some temporary arrangement was made during the Christmas holidays of 2021, but that was also short-lived. This Court cannot shut its eyes to the outright infringement of the rights of the litigants.

6. It is pertinent to refer to the trite law that lack of a forum to agitate a grievance occasions denial of access to justice and access to justice is a fundamental right under the Constitution. An effective adjudicatory mechanism is also a facet of the said fundamental right as held in Anita Kushwaha vs. Pushap Sudan, (2016) 8 SCC 509. Therefore, when the fundamental right to have access to justice is denied, due to the absence of Presiding Officers of the forum created under the statute, the aggrieved are entitled to knock at the doors of this Court under Article 226 or 227 of the Constitution of India. The following observation