IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 31^ST DAY OF MAY 2023 / 10TH JYAISHTA, 1945 OP (DRT) NO. 220 OF 2023 AGAINST THE ORDER/JUDGMENT IN SA 571/2022 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM PETITIONER/S: WILSON JOSEPH AGED 62 YEARS MADATHINAKATH HOUSE, KOOMBARA P.O. MARANCHATTY, KOZHIKODE, PIN - 673604 BY ADVS.

ARUN KRISHNA DHAN T.K.SANDEEP ARJUN SREEDHAR ALEX ABRAHAM VEENA HARIKUMAR SWETHA R.

HARIKRISHNAN P.B.

RESPONDENT/S:

1 THE AUTHORIZED OFFICER/CHIEF MANAGER, SOUTH INDIAN BANK LTD, REGIONAL OFFICE, REGENCY SQUARE, K.K.ROAD, COLLECTORATE P.O. KOTTAYAM, PIN - 686002

2 M/S.SOUTH INDIAN BANK LTD., REPRESENTED BY ITS CHIEF MANAGER, REGIONAL OFFICE, REGENCY SQUARE, K.K.ROAD, COLLECTORATE P.O. KOTTAYAM, PIN - 686002

3 M/S.SOUTH INDIAN BANK LTD REPRESENTED BY BRANCH MANAGER, MONIPALLY BRANCH, WARD NO.III, URALIL BUILDING, MONIPALLY P.O. KOTTAYAM, PIN -

686636

4 M/S.SOUTH INDIAN BANK LTD.,REPRESENTED BY BRANCH MANAGER, THIRUVAMBADI BRANCH, THIRUVAMBADI, KOZHIKODE, PIN - 673603

5 BIJU JOSEPH, S/O.JOSEPH, BILJA VILLA, KADAMBANCHIRA, KOZHA P.O., KOTTAYAM, PIN - 686640

6 SUJA BIJU W/O. BIJU JOSEPH, BILJA VILLA, KADAMBANCHIRA, KOZHA P.O., KOTTAYAM, PIN - 686640 OTHER PRESENT:

SRI P A AUGUSTINE THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 31.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The original petition is filed challenging Ext.P6 common order that has been passed by the Debt Recovery Tribunal II, Ernakulam (in short, 'Tribunal'), rejecting I.A.No.1255/2023 in S.A.No.571/2022 (Ext.P4), filed by the petitioner to appoint an Advocate Commissioner.

2. The brief relevant facts leading to Ext.P6 order are: the petitioner had stood as a guarantor for a loan availed by the respondents 5 and 6 from the 2^nd respondent Bank. The petitioner offered his agricultural land as collateral security. The principal borrowers had defaulted in payment of the EMIs. The 2^nd respondent has initiated proceedings under the SARFAESI Act, against the property of the petitioner. To substantiate the fact that the secured asset is an agricultural land, which is exempted from the purview of the Act, the petitioner filed the above Ext.P4 application, to ascertain and report regarding the nature of the land and the cultivation being carried out in the scheduled property. But, the Tribunal, by the impugned Ext.P6 order, dismissed the application. Ext.P6 is patently wrong and ex-facie illegal. Hence, the original petition.

3. Heard; Sri.Arun Krishna Dhan, the learned Counsel appearing for the petitioner and Sri.Augustine P.A., the learned Counsel appearing for the respondents 1 to 4.

4. Sri.Arun Krishna Dhan, reiterated the contentions in the original petition and contended that in view of Exts.P2 and P3 certificates issued by the authorities, the secured asset is undoubtedly an agricultural land. It is to prove the above aspect, the petitioner had filed Ext.P4 application. However, the Tribunal, without considering the application in its proper perspective, has in a mechanical manner rejected the same. Ext.P6 warrants to be interfered with by this Court.

5. Sri.P.A.Augustine, on the contrary, argued that along with Ext.P4 application the petitioner had filed an application to stay further coercive proceedings. The Tribunal, by the impugned Ext.P6 common order, had directed the petitioner to deposit an amount of Rs.22,50,000/- on or before 30.05.2023. Yet, the petitioner did not deposit the amount. Instead, on the same day, the petitioner has filed the present original petition. Furthermore, the petitioner has submitted Ext.P5 declaration before the 2^nd respondent, undertaking that he could not take a volte face and contend that the secured asset is an agricultural land, which is exempted from the purview of the Act. Therefore, there is no bonafides or merits in the writ petition, which is only liable to be dismissed.

6. The point is whether there is any error in Ext.P6 order wa