JUDGMENT

Dated this the 12th day of October, 2022 The petitioners have approached this Court being aggrieved by Ext.P6 order of the Debts Recovery Tribunal-II, Ernakulam through which the petitioners prayer for interim relief against the proceedings initiated by the respondent bank under the provisions of the SARFAESI Act, 2002 has been declined.

2. Adv.Harish R.Menon, learned Counsel for the petitioners would vehemently contend that the petitioners have raised substantial contentions before the Tribunal including a contention that the proceedings under the SARFAESI Act cannot be initiated against the property in question on account of the fact that the property is an agricultural land, which is the outside the scope of the provisions of the SARFAESI Act. It is submitted that the reading of Ext.P6 order will suggest the Tribunal did not consider the contentions taken by the petitioner on merits and refused the interim relief in an arbitrary manner. It is submitted that notwithstanding the availability of a remedy of appeal before the Debts Recovery Appellate Tribunal, the petitioners are also entitled to challenge Ext.P6 in a petition filed under Article 227 of the Constitution of India before this Court as the remedy of appeal before the Debts Recovery Appellate Tribunal is onerous as the petitioner will be required to deposit 50 percent of the amount demanded as a condition for maintaining the appeal itself. It is submitted that inorder to prove bonafides, the petitioner has paid a sum of Rs.30 lakhs as directed by this Court in the interim order dated

16.09.2022, within the time fixed by this Court.

3. Adv.Mohan Jacob George, learned Counsel for the respondent bank points out that there absolutely no illegality in Ext.P6 order. It is submitted that the Tribunal has clearly found on the basis of materials placed before the Tribunal by the respondent bank that the contention of the petitioners that the property is agricultural land cannot be accepted, at least prima facie. He also placed for the perusal of this Court an affidavit executed by the 1st petitioner, (the owner of the property in question) at the time of availing the loan which clearly sets out that the property is not agricultural land. It is submitted that after having executed such an affidavit, it is not open to the 1st petitioner to now contend that the property is agricultural land when proceedings are initiated under the provisions of the SARFAESI Act to recover amounts due from the petitioners.

4. It is also submitted that facts in this case are identical to facts in the decision of the Hon'ble Supreme Court in ITC Ltd. v. Blue Coast Hotels Ltd [2018 15 SCC 99]. It is submitted that going by the law laid down in ITC Ltd. v. Blue Coast Hotels Ltd., it is now not open to the petitioners to contend that the property is agricultural land. Specific reference is made to the observations in paragraph 37, 38, 39 and 42 of the judgment of the Hon'ble Supreme Court in ITC Ltd. (Supra).

5. Having heard the learned Counsel for the petitioner and the learned Counsel appearing for the respondent bank, I am of the view that this original petition can be disposed of directing the Debts Recovery Tribunal-II, Ernakulam to pass final orders on S.A. No.364/2022 within four months from the date of receipt of a certified copy of this judgment. I am also inclined to stay further proceedings under the SARFAESI Act pending consideration of S.A. No.364/2022 as the petitioners have complied with the interim order dated 16.09.2022. However, considering the fact that even after giving credit to the amounts already paid, nearly Rs.75 lakhs is stated to be due to the respondent bank, the interim protection can be extended only upon the petitioners making deposit of some further amounts.

Accordingly, the original petition is disposed of directing that if the petitioners remit a further sum of Rs.10 lakhs towards the loan liability within a period of one month from today, further proceedings