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HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
UNION BANK OF INDIA – Appellant
Versus
MARGIN FREE SUPER SHOPPING CENTRE – Respondent
OP (DRT)/122/2021
Attachment - Debt Recovery - Debt Recovery Tribunal Act - Section not specified - The court found the service of notice by publication to be valid and deemed service, allowing the proceedings to continue without further notice to the absconding defendants.
Fact of the Case:
The petitioner sought permission to take notice via publication due to the defendants' absconding status after obtaining an attachment of their properties. The tribunal's insistence on serving notice was challenged as unwarranted under the circumstances.
Finding of the Court:
The court ruled that notice served by publication constituted deemed service and that no further notice was necessary, allowing the petitioner to proceed with lifting the attachment.
Issues: Whether the Debt Recovery Tribunal's order to serve notice on defendants was necessary given that notice had already been served via publication.
Ratio Decidendi: The court held that deemed service through publication sufficed for proceeding in absence of contest, especially where no objections had been raised against the sales post-attachment.
Final Decision: The court set aside the requirement for further notice and directed the tribunal to expedite the pending applications.
JUDGMENT
In the peculiar nature of the case, notice to the respondents is dispensed with.
2. Petitioner had preferred OA.No.148/2016 before the Debt Recovery Tribunal-II, Ernakulam. Since notice could not be served on the respondents, permission was granted to the petitioner to take notice by paper publication. While so, petitioner had obtained attachment of three properties of the defendant in the OA as per the order of DRT in IA.No.416/2016. The attachment is shown as an encumbrance in Ext.P2.
3. Thereafter one of the properties were brought for sale. After sale, when the petitioner and the auction purchaser sought to register the sale certificate dated 16.07.2021, the Sub Registrar objected to the registration on the ground of pending attachment effected in the very same case (O.A.No.148 of 2016). Accordingly, petitioner filed Ext.P3, Ext.P4 and Ext.P4 as IA No.1047/2021, IA.No.1049/2021 and IA.No.1050/2021 respectively in the pending case before the Debt Recovery Tribunal. The applications were for return of documents to lift the attachment with respect to the property which was subject to the sale and a substitution petition to incorporate the new entity.
4. It is submitted by the learned counsel for the petitioner that without appreciating that petitioner had taken out notice by paper publication to the defendants and thereafter none had appeared to contest the matter and also without noticing the nature of the applications that were filed by the petitioner the Tribunal ordered notice to be served on the defendants. According to the learned counsel for the petitioner, serving notice upon the defendants in the O.A is practically impossible, since they are absconding and also the same is unnecessary in the circumstances of the case, especially in the light of notice taken out by paper publication having been taken by the petitioner in OA.
5. Having considered the nature of the applications filed before the Tribunal as IA.No.1047/2021, IA.No.1049/2021 and IA.No.1050/2021 and after hearing the arguments of Adv.Ganesh Kumar, the learned counsel for the petitioner, I am of the view that the proceedings of the Debt Recovery Tribunal-II, Ernakulam dated 06.09.2021, in issuing notice to the defendants is unwarranted in the circumstances of the case.
6. Petitioner had already taken notice by publication in the newspaper and there is a deemed service of notice upon the defendants. The sale has not been challenged by any person till date. Further, the application is only for return of the original documents and for lifting the attachment obtained by the petitioner themselves. Lifting the attachment in the very same proceedings, that too obtained by the petitioner itself does not require any notice to the opposite side, specially when they have been set ex parte after notice by paper publication.
In view of the above, there will be a direction to the Debt Recovery Tribunal-II, Ernakulam to take up IA.No.1047/2021, IA.No.1049/2021 and IA.No.1050/2021 and pass appropriate orders, as expeditiously as possible. To enable compliance of this judgment, Ext.P7 to the extent it directs notice to be issued to the respondents shall stand set aside.
The original petition is disposed of as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE RKM APPENDIX OF OP (DRT) 122/2021 PETITIONER'S EXHIBITS :
Exhibit P1 TRUE COPY OF SALE CERTIFICATE ISSUED BY THE AUTHORIZED OFFICER OF THE BANK DATED
16.7.2021 IN FAVOUR OF THE AUCTION PURCHASER.
Exhibit P2 TRUE COPY OF ENCUMBRANCE CERTIFICATE DATED 23.1.2021 BEARING NO.741/21 ISSUED BY KAZHAKUTTOM SUB-REGISTRAR OFFICE, THIRUVANANTHAPURAM DISTRICT WITH RESPECT TO THE PROPERTIES SCHEDULED IN O.A.NO.148 OF 2016.
Exhibit P3 TRUE COPY OF APPLICATION TO RETURN THE ORIGINAL TITLE DEED NUMBERED AS I.A.NO.1047 OF 2021 IN O.A.NO.148 OF 2016 PENDING BEFORE DRT-IIND BENCH, ERNAKULAM.
Exhibit P4 TRUE COPY OF APPLICATION TO RELEASE THE ATTACHMENT NUMBERED AS I.A.NO.1049 OF
2021 IN O.A.NO.148 OF 2016 PENDING BEFORE DRT-IIND BENCH, ERNAKULAM.
Exhibit P5
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