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2024 Supreme(Ker) 1634
IN THE HIGH COURT OF KERALA AT ERNAKULAM
HARISANKAR V. MENON, J.
The South Indian Bank Ltd. - Appellant
Versus
Mr.Joshy Thoams - Respondents
OP(C) NO. 2319 OF 2016
Decided on : 22-10-2024
Advocate Appeared:
For the Appellant : K.K.JOHN, ASISH K.JOHN
For the Respondent: SRI.M.HARISHARMA
The court ruled that identical issues in a civil suit and a debt recovery application justified staying civil proceedings, affirming the distinct jurisdictions of the Debt Recovery Tribunal and Civil Court.
Headnote:
(A) Recovery of Debts and Bankruptcy Act, 1993 - Section 19(5) - Code of Civil Procedure, 1908 - Section 10 - The petitioner-Bank sought to stay proceedings in a civil suit regarding a power of attorney after the respondent defaulted on a loan. The Sub Court dismissed the stay application, prompting the petitioner to appeal. The court found that the issues raised in the civil suit and the written statement were identical, justifying a stay of proceedings. (Paras 6, 13, 15)
(B) Jurisdiction - The Debt Recovery Tribunal does not possess the same powers as a Civil Court, and declaratory relief cannot be sought from it. (Paras 14, 15)
Facts of the case:
The petitioners advanced credit to Kakkassery Autos, leading to default and subsequent proceedings in the Debt Recovery Tribunal. The 1st respondent contested the validity of a power of attorney and mortgage related to the loan.
Findings of Court:
The Sub Court's dismissal of the stay application was unjustified. The petitioner is entitled to a stay of proceedings in the civil suit until the debt recovery application is resolved.
Issues: The main issue was whether the Sub Court should have stayed the civil proceedings in light of the identical issues before the Debt Recovery Tribunal.
Ratio Decidendi: The court held that the identical nature of issues justified staying the civil proceedings, emphasizing the distinct jurisdictions of the Debt Recovery Tribunal and Civil Court.
Result: The Original Petition is allowed, and the order of the Sub Court is set aside.
JUDGMENT :
The petitioners had advanced certain credit facilities to one Kakkassery Autos, in which one K.O.Thomas, father of the 1st respondent was a partner. Since the afore Kakkassery Autos had defaulted the repayment of the credit facility, the petitioner-Bank instituted O.A. No.67/2010 before the Debt Recovery Tribunal, Ernakulam. Simultaneously, steps were also taken by the petitioner against the properties of the deceased Sri. Thomas having an extent of 67.75 cents.
2. The petitioner, upon coming to know about the pendency of the Original Application before the Debt Recovery Tribunal, had entered appearance and had also filed the written statement on 10.05.2010. Later, the 1st respondent herein instituted O.S.No.208/2011 before the Sub court, Tirur, which is produced as Ext.P1 in this Original Petition, seeking for a declaration that the power of attorney executed by the plaintiff in the suit (1st respondent herein) in the name of the wife of the deceased cannot be made use for the procuring a loan from Puthanathani Branch and also for a further declaration that the transaction so entered is not binding upon him. The petitioner noticed that the 1st respondent herein has been prosecuting the very same point before the Debt Recovery Tribunal as well as the Sub Court, Tirur and therefore, filed I.A. No.604/2012 in O.S.No. 208/2011 under the provisions of Section 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) seeking to stay the proceedings in the plaint filed by the 1st respondent herein. By Ext.P6 dated 21.07.2016, the Sub Court, Tirur, dismissed the application filed by the petitioner herein.
3. It is in the afore situation that the petitioner has filed the captioned Original Petition before this Court.
4. A counter afÏdavit is filed by the 1st respondent herein essentially pointing out that the powers available to the Debt Recovery Tribunal and the powers available to the Civil Court are different, and that the Debt Recovery Tribunal cannot consider the claim made by the 1st respondent in the Civil Suit, etc.,
5. I have heard Sri. Ashish K. John, the learned counsel for the petitioner as well as Sri. Hari Sharma the learned counsel for the 1st respondent herein.
6. The dispute in this Writ Petition is as regards the sustainability or otherwise of Ext.P6 order, by which the Sub Court, Tirur, has refused to stay the trial of the suit- O.S.No.208/11- till the final disposal of OA.No.67/2010, pending before the Debt Recovery Tribunal, Ernakulam. The petitioner had pointed out before the Sub Court, in its application under Section 10 of the CPC, that the 1st respondent herein had declaration with respect to the Power of attorney executed by him in favour of his mother and that almost the very same contention has been raised in Ext.P3 written statement filed by the 1st respondent herein as the 7th defendant before the Debt Recovery Tribunal. However, this has not been accepted by the Sub Court.
7. This Court notices that the 1st respondent herein, in Ext.P3 written statement has specifically raised the following contentions:-
“5. In this Context, it is pointed out that the 1st defendant had availed a loan from the ponnani Branch of the Applicants Bank. This defendant had authorized the 6 th defendant herein to creating a mortgage in the said Branch only, vide a specific power of attorney, that too with respect to 35 cents of land only, specifically made mentioned in the said power of attorney. The said loan has been closed. This defendant had never authorized any person to act on his behalf in respect of any property in which this defendant is having an undivided interest. Any such act if done is only at the risk of the persons involved therein. No legally enforceable right can be created by any such act without the express and written consent of this defendant. Any act done in connection thereof is void abinitio.
6. This defendant has not given any power of attorney or any other authorization to the 6 th def
