J U D G M E N T

Petitioner has approached this Court being aggrieved by the fact that the Recovery officer of the Debts Recovery Tribunal-2, Ernakulam has imposed a condition while issuing Ext.P1 sale proclamation that the confirmation of the sale if held will be subject to outcome of SLP (C) Nos.9931 & 9932/2019 before the Supreme Court of India.

2. Sri. Mohan Jacob George, learned counsel appearing for the petitioners would submit that the condition so imposed by the Recovery officer in Ext.P1 is absolutely untenable and uncalled for. It is submitted that SLP (C) Nos.9931 & 9932/2019 arise from the judgment of a Division Bench of this court in OP (DRT) No.136/2018 where the Division Bench took the view that any sale conducted beyond the period prescribed in Rule 68B of the Second Schedule to the Income Tax Act (as made applicable Recovery of Debts Due to Banks and Financial Institutions Act, 1993) is void and unsustainable. It is pointed out that the very same question was considered by a learnd Single Judge of this court in Kutaguptan K. v. Canara Bank and others ; 2010 (1) KHC 243 where in paragraph 8 this court held as follows.

“8. Adverting to Rule 68B of the Second Schedule, it can be seen that the restriction is on sale and the restriction is made referable to the conclusiveness of the demand and the finality of the case. Such conclusiveness is made on the basis of Section 245-I and Chapter XX of the IT Act. The provisions in Chapter XX of the IT Act are not only not incorporated by reference into the RDB Act, but are not even referred to in Section 29 of the RDB Act as relatable to the proceedings under that Act. Therefore, Rule 68B of the Second Schedule to the IT Act which applies to proceedings covered by Section 245-I or Chapter XX of the IT Act, does not, in any view of the matter, apply to

proceedings under the RDB Act.”

It is submitted that the judgment of the learned Single Judge in Kutaguptan (supra) was confirmed by a Division Bench of this court in K. Kutaguptan v.

Canara Bank and others; (MANU/KE/1806/2017) (Ext.P5 judgment). It is submitted that Ext.P5 judgment of this court was affirmed by the Supreme Court by a speaking order, dismissing the Special Leave Petition and reference is made in this regard to Ext.P6 (b) order of the Supreme Court in SLP (C) No.1733/2018. It is submitted that since Ext.P6 (b) order gives reason for dismissal of the special leave petition and therefore the judgment of this court in W.A. No.60/2020 (Ext.P5) stands merged with the judgment of the Supreme Court. It is submitted that a review petition was filed before the Supreme Court which was also dismissed on 26- 04-2022. It is submitted that Ext.P1 sale proclamation has not been challenged by any party including the borrower and therefore there is no reason for the Recovery officer to impose a condition that the sale proclamation will be subject to the orders in the special leave petition filed against Ext.P3 judgment of a Division Bench of this Court. It is further pointed out that operation of Ext.P3 judgment stands stayed vide Ext.P2 order of the Supreme Court in SLP (C) Nos.9931 & 9932/2019 mentioned in Ext.P1 sale proclamation. It is contended further that Ext.P7 sale proclamation is one issued by the Recovery officer attached to the DRT-1, Ernakulam where also the question as to whether the time limit under Rule 68 B would apply is a moot point. It is submitted that the Recovery officer attached to the DRT-1 has not made any condition similar to the condition set out by the Recovery officer attached to DRT-II in Ext.P1 sale proclamation.

3. Sri. S. Vidhyanathan, the learned Central Government Counsel appearing on behalf of the Recovery officer has pointed out the circumstances which compelled the Recovery officer to make a condition that the sale would be subject to outcome of SLP (C) Nos.9931 & 9932/2019. It is submitted that the Division Bench of this court in Kutaguptan's case (supra) had come to a factual conclusion that