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2023 Supreme(Online)(KER) 31684
HIGH COURT OF KERALA
T. R. Ravi, J
RAJU MATHEW – Appellant
Versus
FEDERAL BANK LTD. KOTHAMANGALAM BRANCH – Respondent
OP (DRT) 60 2023
ISAC T.PAUL, JOHN NELLIMALA, P.PAULOCHAN, ANTONY LATHA ANAND, VINAY MATHEW JOSEPH, MOHAN JACOB GEORGE
A court must thoroughly assess existing security values before ordering property attachments in debt recovery cases.
Headnote:
Attachment - Debts Recovery - I.A.No.1816/2018 - The court set aside the order for property attachment due to insufficient consideration of existing security values, directing a reevaluation of claims.
Fact of the Case:
Two original petitions challenge an order from the Debts Recovery Tribunal for the attachment of petitioners' properties, despite existing security exceeding the claim amount.
Issues: Whether the Tribunal properly assessed the necessity of property attachment given the existing security assets disclosed.
Ratio Decidendi: The order for attachment must consider the total security value against the claims made; failure to do so warrants reconsideration of the application.
Final Decision: The order of attachment was set aside and the Tribunal was directed to reconsider the case.
JUDGMENT
These two original petitions are filed against order dated
18.01.2023 in I.A.No.1816/2018 in O.A.No.138/2018 pending before the Debts Recovery Tribunal-I, Ernakuulam. The application had been filed for attachment of properties belonging to the petitioners herein which are not subject matter of the mortgage. The Tribunal has in the order impugned directed the petitioners to furnish security for Rs.7,20,00,000/- on or before 08.02.2023 failing which the petition scheduled properties were to be attached. The claim amount in the O.A appears to be the basis for arriving at the figure Rs.7,20,00,000/-. The reasoning in the order is that the Bank will be prejudiced if the petitioners dispose of their properties pending the O.A claim. There is no consideration of the value of the security which is already available with the Bank and a finding as to its insufficiency for the purpose of justifying attachment of other properties.
2. The Counsel for the petitioners pointed out that even going by the averments in the orginal application which has been produced as Ext.P1 in O.P(DRT).No.57/2023, the estimated value of the security interest is Rs.8,15,60,000/-which exceeds the total claim in the original application. It is hence submitted that there is no necessity to attach any other properties unless it is shown that the value of the security interest which is shown in the original application is wrong or otherwise insufficient. Since, I find that the order does not consider all the aspects which are required to be considered before allowing an application for attachment, I set aside the order dated 18.01.2023 in I.A.No.1816/2018. The Debts Recovery Tribunal is directed to re-consider I.A.No.1816/2018 after affording opportunity to the petitioners and the respondents to adduce necessary evidence, in support of the claim and against the claim, and pass fresh orders within one month from the date of receipt of a copy of this judgment.
The writ petition is disposed of.
Sd/-
T.R.RAVI JUDGE
1816/2018 Exhibit-P5 TRUE PHOTOCOPY OF THE ORDER DATED
18.01.2023 PASSED BY THE DEBTS RECOVERY TRIBUNAL - 1, ERNAKULAM IN I.A. NO.
1816/2018 APPENDIX OF OP (DRT) 60/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 18.01.2023 PASSED BY THE DRT-1,ERNAKULAM BENCH IN IA
1816 OF 2018 IN OA 138/2018 Exhibit P2 TRUE COPY OF THE ORIGINAL APPLICATION BEING OA 138/2018 BEFORE DRT-1, ERNAKULAM BENCH Exhibit P3 TRUE COPY OF THE INTERLOCUTORY APPLICATION FILED BY 1ST RESPONDENT BEING IA 1816 OF 2018 Exhibit P4 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER TO THE IA FILED BY THE 1ST RESPONDENT Exhibit P5 TRUE COPY OF THE VALUATION REPORT DATED
17.09.2009 MADE AVAILABLE TO RESPONDENT NO. 1
