[DRT Vacancies] "Central govt showing scant regard to hardships of litigants:" Kerala High Court

The Kerala High Court recently joined the chorus of other Constitutional courts including the Supreme Court in calling out the Central government for its inaction in filling up vacancies at various Tribunals causing irreparable hardship to litigants. [HDFC Bank Ltd. v Debt Recovery Tribunal - I & Ors.].Justice Bechu Kurian Thomas noted that both Debt Recovery Tribunals (DRT) in the State of Kerala have not been functioning for the last several months which has halted the access of litigants to courts, bringing them great misery.Despite that, the Central government has shown scant regard to the hardships of the litigants, the Court said."The litigants - both the financial institutions as well as the borrowers/ guarantors, are being put to irreparable hardships. Without a forum to agitate their grievance, the litigants are facing deprivation of their property and the Central Government has shown scant regard to the hardships and trauma of the litigants. The statutory mandate of appointing Tribunals are being ignored without any reason," the Court said..Central Government has shown scant regard to the hardships and trauma of the litigants.Kerala High Court .The unfortunate situation in the functioning of the Debts Recovery Tribunal in Kerala started in March, 2021, the Court noted.In March, one of the two presiding officers of the Tribunal demitted office and in September 2021, the other presiding officer also followed suit.Even though in October 2021, on the query of the Court, the Central Government had informed that the presiding officers will be appointed soon, nothing happened, the Court noted. Later, some temporary arrangement was made during the Christmas holidays of 2021, but that was also short-lived..This, the Court said, led to a situation where litigants have been forced to approach the High Court repeatedly. The Court observed that lack of a forum to agitate a grievance amounts to denial of access to justice and access to justice is a fundamental right under the Constitution"This Court cannot shut its eyes to the outright infringement of the rights of the litigants," the Court said.Moreover, in December 2021, given the lack of personnel at the Debts Recovery Tribunal (DRT) and the Debts Recovery Appellate Tribunal (DRAT), the Supreme Court had asked the High Courts to entertain applications that are filed before these fora as a stop-gap measure..The High Court judgement was rendered on a plea filed by petitioner who was an applicant before the Debts Recovery Tribunal in Ernakulam whose liability had been cleared by the borrowers and guarantors during recovery proceedings. By the time petitioner filed an application to recall the recovery certificate and return the title deed, the DRT had stopped functioning. Advocate CM Ebrahim appearing for the borrowers, submitted that the delay in getting the title deeds was causing great prejudice to them and the absence of the presiding officers of the DRT upset their entire financial planning..The Court opined that it was clear that there was no access to debt recovery mechanism in Kerala at present and therefore, this was a fit case to invoke its jurisdiction under Article 226 of the Constitution of India ."Therefore, when the fundamental right to have access to justice is denied, due to the absence of Presiding Officers of the forum created under the statute, the aggrieved are entitled to knock at the doors of this Court under Art.226 or 227 of the Constitution of India," the judgement stated.The Court recorded the receipt of the amounts due to the petitioner in full and final satisfaction of the liability due to the applicant before the Tribunal and ordered the return of the title deed. Advocate Leo George appeared for the petitioner while the other respondents were represented by Advocates Jobi A Thampi and Shoukath Husain..The Supreme Court had pulled up the Central Government on many occasions due to the alarming situation of burgeoning vacancies at several DRTs and DRATs. On Thursday, the Central Government cleared appointments of chairpersons to the Debts Recovery Appellate Tribunal (DRAT).This came a day after the Supreme Court expressed its displeasure stating that the bureaucracy was taking the issue of tribunal appointments very lightly."We are getting [requests for] extension of time for NCLT matters etc. Some knee jerk appointments took place and nothing after that. We don't know the fate of members and many are retiring. Bureaucracy is taking it lightly", the Bench headed by CJI NV Ramana had said.The Tribunal Reforms Act, 2021, passed by the parliament laying down the tenures and other service conditions of tribunal members, has also contributed to the friction.Many of the provisions of the Act run contrary to the mandate of the Supreme Court judgment regarding tenures of service of tribunal members.The Supreme Court had on July 14, 2021 struck down the newly inserted Section 184 of the Finance Act, 2017 as amended by the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (Ordinance) to the extent that it fixed the tenure of members and chairperson of tribunals at 4 years.The top court had ruled that Section 184(11) of the Finance Act, which prescribes a tenure of four years for members, was contrary to the principles of separation of powers, independence of judiciary, rule of law and Article 14 of the Constitution of India as well as the judgment of the apex court in the Madras Bar Association III case.However, as per Section 5 of the new Bill, the term of office of the Chairperson of a tribunal shall be four years or till the person attains age of 70, whichever is earlier. Similarly, for members of tribunals, the tenure has been prescribed as four years or till he/she attains 67 years, whichever is earlier..[Read Judgment]