IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 WP(C).No. 37475 of 2008(J) --------------------------------------- PETITIONER(S): ------------------------ ANNAMMA ROY, POOVATHUMKAL HOUSE, THEKKUM MURI, PULIYANNOOR P.O., PALA. BY ADV. SRI.V.N.SASIDHARAN SRI.SANTHOSH THOMAS KANDAMCHIRA RESPONDENT(S): --------------------------- 1. MUTHOLY SERVICE CO-OPERATIVE BANK LTD.NO.1631, THEKKUM MURI, PULIYANNOOR, REPRESENTED BY THE SECRETARY. 2. THE ASSISTANT REGISTRAR, CO-OPERATIVE SOCIETIES (GENERAL), MEENACHIL, PALA. 3. THE ARBITRATION AND EXECUTION INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, MEENACHIL, PALA. R1 BY ADV. SRI.THOMAS ANTONY R2 & R3 BY GOVERNMENT PLEADER SRI.M.MOHAMMED SHAFI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.37475/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER BY THE 1ST RESPONDENT DATED 19/10/2007. P2 COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER BY THE 1ST RESPONDENT DATED 14/1/2008. P3 COPY OF THE LETTER SENT TO THE PETITIONER BY THE 1ST RESPONDENT DATED 13/3/2008. P4 COPY OF THE LETTER NO.K523/08 SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 24/3/2008. P5 COPY OF THE LETTER SUBMITTED TO THE 1ST RESPONDENT BY THE PETITIONER DATED 28/3/2008. P6 COPY OF THE AUCTION NOTICE, EA NO.1058/05 SENT BY THE 3RD RESPONDENT TO THE PETITIONER DATED 12/11/2008 RESPONDENT'S EXHIBITS: R1(A) COPY OF THE APPLICATION OF CHINNU ROY RECEIVED BY THE BANK FROM THE 2ND RESPONDENT. R1(B) COPY OF THE LETTER DATED 19/10/07 ISSUED BY THE BANK TO THE 2ND RESPONDENT. R1(C) COPY OF THE APPLICATION OF ANNAMMA ROY RECEIVED BY THE BANK. R1(D) COPY OF THE LETTER DATED 12/08/11 ISSUED BY THE BANK TO THE PETITIONER. /TRUE COPY/ P.S.TO.JUDGE sts P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.37475 of 2008 ------------------------------- Dated this the 16th day of August, 2011 J U D G M E N T The petitioner availed a loan from the first respondent co- operative society on 22.9.2001 on the security of a parcel of land, 14.50 cents in extent, situated in Re-survey No.277/3A of Puliyannoor Village, Meenachal Taluk, Kottayam District. The loan was to be repaid within a period of 5 years in 10 half yearly instalments, commencing from 22.3.2002 and ending with 22.9.2006. The petitioner did not repay the loan in time. The bank thereupon took steps to recover the amount due to it by filing A.R.C.No.1503 of 2004. After notice to the petitioner, an award was passed. The bank thereupon took steps to execute the award and the security offered by the petitioner was brought to sale on 22.3.2006. On 22.3.2006, the petitioner deposited the sum of Rs.15,000/-. The sale was accordingly adjourned. Later, Ext.P6 sale proclamation was issued proposing to sell the security on 22.12.2008 for realisation of the sum of Rs.3,26,504/- due as on the date of sale. The instant writ petition was thereupon filed on 17.12.2008 challenging Ext.P6 sale proclamation. 2. The main contention raised by the petitioner is that the first respondent bank did not permit the petitioner to settle the loan W.P.(C) No.37475 of 2008 2 account under the one time settlement scheme. It is also contended that the award passed in favour of the first respondent bank and the steps taken by the first respondent to execute the award are liable to be quashed. 3. When this writ petition came up for admission-hearing on 18.12.2008, this Court while admitting the writ petition and staying the sale directed the petitioner to pay the sum of Rs.75,000/- on or before 31.12.2008 and a further sum of Rs.75,000/- on or before 31.1.2009. This Court also directed that if there is default in remitting any of the instalments, the benefit of the order will stand recalled automatically. Later, when the writ petition came up for hearing on 8.10.2010, this Court directed the petitioner to deposit a further sum of Rupees One Lakh. Thereafter, by order passed on 9.11.2010, the time fixed by this Court for payment of the sum of Rupees One Lakh was extended by a period of one month from 9.11.2010. It is not in dispute that pursuant to the said interim orders, the petitioner has deposited the sum of Rs.2,50,000/-. 4. The first respondent has filed a counter affidavit contending inter alia that the petitioner is a wilful defaulter and as a person who is affluent, she is not entitled to the benefit of loan waiver or waiver of interest. The first respondent has filed a statement dated W.P.(C) No.37475 of 2008 3 13.8.2011 wherein it is stated that as on 16.8.2011, the total amount due from the petitioner was Rs.1,48,181/- consisting of Rs.1,31,860/- towards principal and Rs.16,321/- towards interest calculated at the rate of 18% per annum in terms of the award. It is also stated that if the petitioner is given the benefit of Circular No.41 of 2011 dated 23.6.2011 which is in force till 15.8.2011, besides the principal amount of Rs.1,31,860/-, Rs.8,814/- will have to be paid by way of interest and on the petitioner paying the total sum of Rs.1,40,474/-, the loan account can be closed. 5. When the writ petition came up for hearing today, the learned counsel for the petitioner submitted that the demand made by the first respondent bank in the statement dated 13.8.2011 is ex- orbitant, that the petitioner has already paid the sum of Rs.2,50,000/- pursuant to the interim orders passed by this Court and the sum of Rs.15,000/- voluntarily, and she is not liable to pay the sum of Rs.1,40,474/- as claimed by the first respondent. Though the petitioner has not produced the award passed by the Arbitrator, as on the date of the proposed sale on 22.12.2008, the sum of Rs.3,26,504/- was due from the petitioner. As per the award, the petitioner is liable to pay future interest at the rate of 18% per annum. After giving credit to the payments made by the petitioner W.P.(C) No.37475 of 2008 4 pursuant to the interim orders passed by this Court which was appropriated towards interest due in terms of the award, as on 16.8.2011, the sum of Rs.1,48,181/- was due from the petitioner. The bank has given her waiver of interst applying Circular No.41 of 2011. From the statement dated 13.8.2011 filed by the first respondent, it is evident that all the payments made by the petitioner till date have been duly given credit to. Such being the situation, I find no merit in the contention made by the petitioner that she is not liable to pay the amount claimed in the statement dated 13.8.2011. 6. As per Circular No.41 of 2011 dated 23.6.2011, the one time settlement was in force only till 15.8.2011. The said period has since been extended till 15.9.2011 by Circular No.62 of 2011 dated 12.8.2011. In such circumstances, having regard to the fact that the bank has offered to extend to the petitioner the benefit of the said scheme, on the petitioner paying the sum of Rs.1,40,474/- due as on 16.8.2011 in lump, I am of the opinion that the petitioner can be given a reasonable time to make the said payment. I accordingly dispose of the writ petition with a direction that in the event of the petitioner paying the sum of Rs.1,40,474/- on or before the close of banking hours on 31.8.2011, the first respondent bank shall close the loan account and return the W.P.(C) No.37475 of 2008 5 documents of title deposited by the petitioner. If, on the otherhand, the petitioner does not deposit the said sum, it will be open to the first respondent bank to proceed to execute the award for realisation of the balance amount due from her. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No.37475 of 2008 JUDGMENT Dated:- 16th August, 2011 --------------------------------------