IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 WP(C).No. 2383 of 2009(H) ------------------------- PETITIONER(S): ----------------- V.M.NIZAR, VADAKKAYIL,MUTHALAKKULAM, THODUPUZHA REPRESENTED BY POWER OF ATTORNEY HOLDER V.V.GEORGE, CHIRAMEL HOUSE THODUPUZHA. BY ADV. SRI.C.P.RAVIKUMAR RESPONDENT(S): ------------------- 1. IDUKKI DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS GENERAL MANAGER. 2. KERALA STATE CO-OPERATIVE BANK LTD., M.G.ROAD, THIRUVANANTHAPURAM REPRESENTED BY ITS MANAGING DIRECTOR. 3. STATE OF KERALA RPRESENTED BY ITS CHIEF SECRETARY,THIRUVANANTHAPURAM. ADV. SRI.NAGARAJ NARAYANAN,SC,K.S.CO-OP BANK FOR R2 SRI.P.C.SASIDHARAN, SC FOR R1 GOVT.PLEADER SRI.K.S.MOHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.2383/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE JUDGMENT IN OP NO.27447/01 DT 27.5.2005. EXT.P2: TRUE COPY OF THE JUDGMENT IN WA NO.1398/05 DTD.13.7.05. EXT.P3: TRUE COPY OF THE JUDGMENT IN AP NO.62/99 DT 14.11.2008 PASSED BY THE CO-OPERATIVE TRIBUNAL, TRIVANDRUM. EXT.P4: TRUE COPY OF THE STATEMENT OF ACCOUNTS ISSUED BY THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF THE RECEIPT ISSUED BY THE SPECIAL SALE OFFICER DATED 8.1.95. EXT.P6: TRUE COPY OF THE JUDGMENT IN WA N.481/09 DT 8.6.09. EXT.P7: TRUE COPY OF THE NOTICE DT 1.6.09. EXT.P8: TRUE COPY OF THE REPLY NOTICE DT 6.7.2009. EXT.P9: TRUE COPY OF THE LETTER ISSUED BY THE AUTORISED OFFICER UNDER SARFAESI ACT DT 9.7.09. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 2383 OF 2009 (H) ===================== Dated this the 20th day of August, 2009 J U D G M E N T The challenge in this writ petition is against Ext.P3, the judgment rendered by the Kerala Co-operative Tribunal in Appeal Petition No.62/99. 2. Facts of the case are that in 1985, the petitioner had availed of an industrial loan of Rs.10,00,000/- from the 1st respondent Bank, repayable with 14.5% interest and 2% default interest in case of default. The loan was to be repaid in 18 half yearly instalments, the last of which was scheduled on 15/6/95. Default was committed and the Bank filed ARC 3/91 resulting in an ex parte award. Against that award, AP 62/99 was filed by the petitioner, which was disposed of by the Tribunal reducing the interest to 6%. 3. The judgment was challenged by the Bank by filing OP No.27447/01 and by the petitioner in OP No.28588/2001. The writ petitions were disposed of by Ext.P1 common judgment rendered on 27/5/2005 remitting the matter for fresh consideration only in so far as the interest awarded was concerned. In other words, the WPC 2383/09 :2 : principal amount found to be due from the petitioner was upheld in the aforesaid judgment. Against Ext.P1 judgment, petitioner filed WA 1398/05, which was disposed of by Ext.P2 judgment directing disposal of the appeal within four months taking into account the judgment in the case of Kerala State Co-operative Bank Ltd., v. The Kerala Co-operative Tribunal (2004(2) KLJ 959). 4. Though belatedly, by Ext.P3 judgment rendered on 14/11/2008, the Tribunal disposed of the matter enabling the Bank to realise principal amount with 1 2.5% from 1/10/95 till realisation. It is also seen that an instalment facility was allowed to the petitioner, which of course was not availed of. It is challenging Ext.P3, this writ petition is filed. 5. In this writ petition, by order dated 21/1/2009, this Court directed the petitioner to pay an amount of Rs.19,71,000/-, which was roughly estimated to be the dues from the petitioner, if principal is to be paid with 6% interest, in instalments. Counsel for the petitioner now says that, though beyond the time specified in the order, payment has been made. WPC 2383/09 :3 : 6. When the matter was taken up for hearing, the only contention that was advanced before me was that Ext.P3 judgment of the Tribunal was against the law laid down in the judgment of this Court in the Kerala State Co-operative Bank Ltd., v. The Kerala Co-operative Tribunal (2004(2) KLJ 959). 7. In the aforesaid judgment, this Court held that to the adjudication under the Kerala Co-operative Societies Act, Section 34 of the Civil Procedure Code applies and that the Tribunal has the discretionary power to award interest upto the contract rate of interest. It is held that it is for the Tribunal to apply its discretion and award interest at appropriate rate, but however, within the limits indicated in Section 34. The question is whether, Ext.P3 judgment can be said to be in conflict with the law thus laid down in the aforesaid judgment. 8. In this case, as already noticed, the contract rate of interest is 14.5% with penal interest of 2% in case of default. A reading of para 16 of Ext.P3 judgment shows that the Tribunal has awarded only 12.5%. This therefore evidences that the Tribunal has applied its discretion and has fixed the aforesaid rate of WPC 2383/09 :4 : interest. In my view, the said award of interest does not in any manner offend the principles laid down by the Division Bench in the judgment rendered above. Writ petition therefore fails and is dismissed. ANTONY DOMINIC, JUDGE Rp