IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 WP(C).No. 2103 of 2011(K) -------------------------------------- PETITIONER(S): ------------------------ B. ABOOBACKER, S/O.LATE ABDUL RAHMAN HAJI, BANSON MANSON MANZIL, CHOORI, RAMDAS NAGAR, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON, SMT.GOVINDU P.RENUKADEVI. RESPONDENT(S): -------------------------- 1. SAFIA A.BENGARA, W/O.ABOOBACKER, CHOORI, POST RAMDAS NAGAR, KUDALU, KASARAGOD-671 125. 2. THE SECRETARY, THE KASARAGOD PRIMARY CO-OP. AGRICULTURAL DEVELOPMENT BANK LTD., NO.F.F.113, KASARAGOD, PIN-671 125. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES GENERAL, KASARAGOD, PIN-671 125. 4. THE SPECIAL SALE OFFICER/SENIOR INSPECTOR, THE KASARAGOD PRIMARY CO-OP. AGRICULTURAL DEVELOPMENT BANK LTD., NO.F.F.113, KASARAGOD, PIN-671 125. R3 & R4 BY GOVT. PLEADER MR.BASANT BALAJI. R2 BY ADV. MR.PUSHPARAJAN KODOTH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2011, ALONG WITH WPC NO. 11471 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.2103 of 2011 & W.P.(C) No.11471 of 2006 ------------------------------- Dated this the 25th day of January, 2011 J U D G M E N T After arguments were heard at length, the learned counsel for the petitioner in W.P.(C) No.2103 of 2011 sought permission to withdraw the writ petition. However, in view of certain facts which have come to my notice, I do not deem it fit and proper to grant permission to withdraw the writ petition. For easy reference, I shall deal with the facts in W.P.(C) No.2103 of 2011. 2. The petitioner in W.P.(C) No.2103 of 2011 is the husband of first respondent, who had availed a loan from the Kasargod Primary Co-operative Agricultural Development Bank Ltd. herein after referred to as 'the Bank' for short, way back in the year 2000. The petitioner is a guarantor to the said transaction. When the loan was not repaid, the bank initiated steps under the provisions of the Kerala State Co-operative Agricultural and Rural Development Banks Act, 1984 for sale of the security without the intervention of the court. The sale officer thereupon issued a demand notice calling upon the first respondent herein to pay the sum of Rs.6,43,486/- which was the amount due to the bank as on 23.11.2004. The first respondent thereupon filed W.P.(C) No.13546 of 2005 in this Court. A learned W.P.(C) Nos.2103/2011 & 11471/2006 2 single Judge of this Court while admitting the said writ petition, passed an interim order on 3.5.2005, a copy of which is produced as Ext.P4 in W.P.(C) No.11471 of 2006, staying further proceedings pursuant to the demand notice subject to the condition that the first respondent shall pay a sum of Rs.1 lakh on or before 15.5.2005. The first respondent did not comply with the said direction. She later filed I.A.No.7864 of 2005 in W.P.(C) No.13546 of 2005 to enlarge the time fixed by this Court for payment of the sum of Rs.1 lakh till 3.8.2005. By Ext.P4(a) order produced in W.P.(C) No.11471 of 2006, the learned single Judge granted time upto 30.6.2005 to deposit the sum of Rs.1 lakh. The learned Judge also directed that besides the said sum of Rs.1 lakh, the first respondent shall remit a further sum of Rs.20,000/- on or before 30.6.2005. The first respondent did not comply with the said direction also. W.P.(C) No.13546 of 2005 was thereupon dismissed by judgment delivered on 15.7.2005, a copy of which is produced as Ext.R1(b) in W.P.(C) No.11471 of 2006. After the said writ petition was dismissed, the bank brought the security to sale as per Ext.P6 sale notice. At that stage, the first respondent filed W.P.(C) No.11471 of 2006 in this Court seeking the following reliefs:- 1. Call for the records in Ext.P6 and quash the same by issuing the writ of Certiorari or any other appropriate writ. W.P.(C) Nos.2103/2011 & 11471/2006 3 2. Issue writ of mandamus directing the respondent to permit the petitioner to pay Ext.P6 loan amount in onetime settlement with all its benefits. 3. Issue writ of mandamus directing the respondent to consider and pass orders in Ext.P5 within a time limit. 4. Issue writ of mandamus directing the respondent to issue the statement of account in the loan account of the petitioner in loan No.NF396 in the respondent bank. 5. Issue writ of mandamus directing the respondent to grant 20 instalments to the petitioner for the payment of the arrears amount. 6. Stay all further proceedings in Ext.P6 and in E.P.No.28/04-05 till the final disposal of this writ petition. 7. Pass any other order or direction deems fit and proper to the circumstances of this case and thus render justice. 3. When the said writ petition came up for admission- hearing on 18.4.2006, a learned single Judge of this Court while admitting the writ petition passed an interim order staying all further proceedings pursuant to Ext.P6 sale notice in the event of the petitioner depositing the sum of Rs.3 lakhs on or before 30.4.2006. The first respondent did not comply with the said direction. Later, the writ petition was dismissed for default on 7.7.2006. On application filed by the first respondent as M.J.C.No.397 of 2006, the order dismissing the writ petition for default was set aside and the writ petition was restored to file. Since the first respondent did not W.P.(C) Nos.2103/2011 & 11471/2006 4 comply with the conditional order passed by this Court in W.P.(C) No.11471 of 2006, the bank initiated fresh steps for sale of security. W.P.(C) No.2103 of 2011 was thereupon filed by the husband of the first respondent who is the guarantor to the said transaction seeking the following reliefs:- 1. Call for the records in E.P.No.28/04-05 in loan No.NF396 and permit the petitioner to pay the loan amount as per Ext.P2 in 12 equal monthly instalments. 2. Issue writ of mandamus directing the respondent to issue the statement of account in the loan of the petitioner in loan No.NF396 in the respondent bank. 3. Stay all further proceedings in Ext.P2 and in E.P.No.28/04-05 till the final disposal of this writ petition. 4. Pass any other order or direction deems fit and proper to the circumstances of this case and thus render justice. 4. The main relief sought in W.P.(C) No.2103 of 2011 is to enable the petitioner to pay the loan amount in 12 equal monthly instalments. It is contended relying on Ext.P1 series of receipts that the petitioner has paid substantial amounts towards the loan account, and therefore, the proposal to sell the security by public auction on 25.1.2011 is not called for. When W.P.(C) No.2103 of 2011 came up for admission on 20.1.2011, on noticing that the petitioner has not referred to the orders passed by this Court in the writ petitions earlier W.P.(C) Nos.2103/2011 & 11471/2006 5 filed by his wife, though he has referred to the fact that the writ petitions have filed, I directed that W.P.(C) No.11471 of 2006 also be posted along with this writ petition. Accordingly, both the writ petitions have come up before me for hearing today. 5. A mere look at Ext.P1 series of receipts discloses that the last payment to the loan account was made on 17.3.2010. In fact, the second and fourth receipts in pages 6 and 7 are copies of the same receipt evidencing payment of Rs.80,000/- made on 27.4.2009. As per Ext.P2, the amount due from the petitioner and his wife as on 18.12.2010 is Rs.8,00,521/- and other charges. The bank has evidently taken note of the payments made prior to that date, the last of which was made on 17.3.2010. When the writ petitions were heard today, Sri.Shajimon.T.B., the learned counsel appearing for the petitioner in W.P.(C) No.2103 of 2011 submitted that the petitioner had deposited the sum of Rs.80,000/- yesterday, and therefore, the petitioner may be given an opportunity to pay the balance amount in instalments. Sri.Kodoth Pushparajan, the learned counsel appearing for the bank submitted that though in the writ petitions filed by the petitioner's wife, conditional interim orders were passed, she did not comply with the interim orders passed by this Court and that the petitioners' conduct is such that they do not deserve any sympathetic W.P.(C) Nos.2103/2011 & 11471/2006 6 consideration. 6. It is evident from Ext.R1(b) judgment produced in W.P.(C) No.11471 of 2006 that the first respondent, principal debtor, who is none other than the wife of the petitioner in W.P.(C) No.2103 of 2011, had earlier moved this Court in the year 2005, got an order of stay, but failed to comply with the conditions therein. Later, after the said writ petition was dismissed and the bank initiated fresh steps, she again filed W.P.(C) No.11471 of 2006 seeking an opportunity to pay the balance amount in instalments. In that writ petition also, this Court passed a conditional order staying the sale. The first respondent did not comply with the said condition. In view of the failure to deposit the sum of Rs.3,00,000/-, the bank initiated fresh steps for sale of security. It is at that stage that W.P.(C) No.2103 of 2011 was filed wherein there is a passing reference to the earlier writ petitions. The averment in paragraph 3 of W.P.(C) No.2103 of 2011 is in my opinion one intended to prevent the petitioner therein being accused of suppressing facts. However, the petitioner in W.P. (C) No.2103 of 2011 has not produced along with the writ petition the interim orders passed in the earlier writ petitions filed by his wife or the judgment delivered in W.P.(C) No.13546 of 2005. It was only when W.P.(C) No.11471 of 2006 was posted for hearing along with W.P.(C) Nos.2103/2011 & 11471/2006 7 W.P.(C) No.2103 of 2011 that this Court came to know of the earlier interim orders passed in the writ petitions filed by the principal debtor. In view of the past conduct of the principal debtor who is none other than the wife of the petitioner in W.P.(C) No.2103 of 2011 and the petitioner being the guarantor to the said loan transaction, I am of the opinion that the petitioner and the first respondent are not entitled to invoke the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. Ever since 2005, they have been filing repeated writ petitions to prevent the sale of security but failed to comply with the conditional orders passed by this Court. They have thereby prevented the sale of security on more than two occasions. In such circumstances, I decline jurisdiction and dismiss the writ petitions. P.N. RAVINDRAN, JUDGE. nj.