Point of Law: High Court exercising supervisory jurisdiction does not act as a court of first appeal to re-appreciate, reweigh evidence or facts upon which determination under challenge is based.

JUDGMENT :

K. BABU, J.

1. The prayers in this Original Petition filed under Article 227 of the Constitution of India are as follows:

“Therefore the honourable High Court of Kerala may be pleased to issue notice to the respondents and after hearing there may be an order:

(a) Setting aside Exhibit P4 order in I.A. No. No. 2750 of 2023 in S.A. No. 448 of 2023 of Debt Recovery Tribunal-2, Ernakulam.

(b) Directing the Debt Recovery Tribunal-2, Ernakulam to consider all questions such as prima facie case, irreparable injury and balance of convenience etc. of the parties and pass fresh order in I.A. No. No. 2750 of 2023 in S.A. No. 448 of 2023 of Debt Recovery Tribunal-2, Ernakulam.

(c) Any other relief that the honourable court may deem appropriate to meet the ends of justice.”

Facts:

2. Petitioner No. 1 is a partnership firm registered under the Indian Partnership Act. Petitioner No. 2 is the Managing Partner of the firm. Petitioner No. 3 is one of the partners. Petitioner No. 4 is a guarantor of the loan availed by petitioner No. 1 from respondent No. 1, the bank (secured creditor).

2.1. On 15.12.2017, petitioner No. 2 had availed a credit facility from the bank to the tune of Rs. 10 Crores in favour of the firm, with petitioner No. 4 standing as guarantor. The immovable property in Survey No. 27/2 of Koovappally Village of Kanjirappally Taluk in Kottayam District was given as security for repayment of the loan amount. The title deeds of the property were deposited with the bank for creating an equitable mortgage. On 26.02.2018, the cashcredit limit was enhanced to Rs. 11 Crores. On 26.02.2020, the bank classified the loan account as Non-Performing Asset (NPA). Thereafter, the bank initiated proceedings under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) by issuing notice to the petitioners to pay a total sum of Rs. 11,87,68,028.39/-. On 08.09.2020, the bank issued a possession notice under Section 13(4) of the SARFAESI Act proclaiming that the movable and immovable properties involved have been taken possession by way of symbolic possession. The petitioners challenged the measures taken by the bank under Section 13(4) of the SARFAESI Act by filing S.A. No. 233/2020 before the Debts Recovery Tribunal-II, Ernakulam. The Tribunal granted interim stay and, after final adjudication, dismissed the Securitisation Application as per order dated 17.01.2023.

2.2. The bank filed O.A. No. 702/2020 before the Debts Recovery Tribunal. On 09.02.2023, the bank issued notice under Section 13(8) of the SARFAESI Act proposing to sell the property mortgaged on the failure of the petitioners to discharge the liability. In the meantime, the bank approached the Chief Judicial Magistrate Court, Kottayam, for appointment of an Advocate Commissioner under Section 14 of the SARFAESI Act. As per order dated 14.02.2023, the Chief Judicial Magistrate appointed an Advocate Commissioner and directed him to take possession of the properties. The Advocate Commissioner issued a notice proposing to take possession of the properties. Petitioner No. 2 approached this Court by filing W.P. (C) No. 9226/2023 to direct the respondent to consider the request for One Time Settlement. The bank rejected the proposal submitted by the petitioners for One Time Settlement. Petitioner No. 2 withdrew the Writ Petition No. 9226/2023 on 18.08.2023 with the liberty to challenge the proceedings under Section 14 of the SARFAESI Act before the Debts Recovery Tribunal. On 21.08.2023, the petitioners filed S.A. No. 448/2023 before the Debts Recovery Tribunal-II, Ernakulam, challenging the measures taken by the bank under Section 14 of the SARFAESI Act. Along with the S.A, the petitioners filed I.A. No. 2750/2023 seeking a stay of the measures taken under the SARFAESI Act. The Tribunal initially granted an interim order. After hearing both sides, as per Exhibit P4 order, the Tribunal dismissed the interim appl