IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 14289 of 2011(I) -------------------------- PETITIONER(S): --------------- P. GOPALAN, AGED 48 YEARS, S/O. PAZHANISAMI CHETTIAR ANITHA NIVAS, VANIAMKULAM POST, OTTAPPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): --------------- 1. OTTAPPALAM CO-OPERATIVE URBAN BANK LTD. NO.1647 MAIN ROAD, OTTAPALAM, REP. BY ITS SECRETARY PIN - 679 101. 2. P. VIJAYA KUMAR, S/O. MADHAVAN, PARAKOTTIL HOUSE, VANIAMKULAM POST, OTTAPALAM TALUM PIN - 679 522 3. THE ASSISTANT REGISTRAR OF CO-OP. SOCIETIES (G) OFFICE OF THE ASST. REGISTRAR OF CO-OP SOCIETIES (G) OTTAPPALAM - 679 101 4. THE SECRETARY TO GOVERNMENT DEPARTMENT OF CO-OPERATION SECRETARIATE, THIRUVANANTHAPURAM, PIN - 695 001. BY GOVT. PLEADER SRI. JAIBY PAUL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No. 14289 of 2011 ------------------------------- Dated this the 27th day of May, 2011 J U D G M E N T The petitioner availed a loan from the first respondent bank. When the loan was not repaid, the first respondent bank filed A.R.C.No.1448 of 2004 before the Arbitrator. In that arbitration case, an award was passed on 18.1.2005. Even thereafter, the petitioner did not repay the debt. The bank thereupon took steps to execute the award. In execution of the said award, an item of immovable property belonging to the petitioner was brought to sale and sold on 27.7.2007 under the provisions of the Kerala Co-operative Societies Act, 1969 and the Kerala Co-operative Societies Rules, 1969. The second respondent was the successful bidder in the auction. The sale held on 27.7.2007 was confirmed on 25.9.2007 and thereafter a sale deed was also executed in favour of the second respondent. The petitioner did not challenge the sale held on 27.7.2007 within the time stipulated, either by filing an application under rule 82 or under rule 83 of the Kerala Co-operative Societies Rules. It was for that reason that the sale was confirmed and a sale deed executed in favour of the purchaser. The second respondent, the successful bidder, thereupon filed E.P.No.78 of 2008 in Sub Court, Ottappalam for delivery of the property purchased by him in the auction held on 27.7.2007. Long W.P.(C) No.14289 of 2011 2 thereafter, the petitioner filed an application dated 30.3.2011 before the Assistant Registrar of Co-operative Societies (General), Ottappalam under rule 83 of the Kerala Co-operative Societies Rules to set aside the sale held on 27.7.2007. By Ext.P4 letter dated 5.4.2011, the Assistant Registrar of Co-operative Societies (General) Ottappalam informed the petitioner that his application to set aside the sale cannot be considered, since the sale was held on 27.7.2007, it was confirmed on 25.9.2007 and the sale deed was executed on 22.4.2008. The petitioner has aggrieved thereby filed Ext.P5 appeal dated 9.5.2011 before the State Government under section 83(1)(j) of the Kerala Co-operative Societies Act accompanied by Ext.P6 application seeking stay of execution of the award. The instant writ petition has been filed seeking the following relief:- Issue a writ of mandamus or other appropriate writ, order or direction directing the 4th respondent to consider Ext.P5 Appeal and Ext.P6 application for stay on merit after hearing the petitioner at the earliest, at any event before 30.5.2011. 2. Rule 83 of the Kerala Co-operative Societies Rules stipulates that an application to set aside a sale on the ground of irregularity of fraud has to be filed within 30 days from the date of the sale. Sub-rule (3) of rule 83 further stipulates that if no application to W.P.(C) No.14289 of 2011 3 set aside the sale has been filed within 30 days from the date of sale or if such an application has been made and has been rejected, the Registrar shall make an order confirming the sale. In the instant case, the property belonging to the petitioner was brought to sale on 27.7.2007. The petitioner did not admittedly file an application to set aside the sale within the stipulated period of 30 days. The sale was therefore confirmed on 25.9.2007 and a sale deed was also executed in favour of the purchaser on 22.4.2008. Rule 83 of the Kerala Co- operative Societies Rules does not empower the Registrar or the Assistant Registrar to condone the delay in filing an application to set aside the sale. Therefore, even though an appeal lies from the order rejecting an application to set aside the sale to the Government, the Government cannot allow the appeal and direct re-consideration of the application filed by the petitioner for the reason that the original authority had no power to condone the delay in filing the application. As noticed earlier, the sale was held on 27.7.2007 and it was confirmed on 25.9.2007. The application to set aside the sale was filed on 30.3.2011. The application was highly belated and was liable to be rejected and in my opinion, was rightly rejected by the Assistant Registrar of Co-operative Societies. In such circumstances, I am of the opinion that no purpose would be served by directing the W.P.(C) No.14289 of 2011 4 Government to consider Ext.P5 appeal and pass orders thereon. In the view that I have taken, I am of the opinion that no relief can be granted to the petitioner. The writ petition fails and is accordingly dismissed in limine. P.N. RAVINDRAN, JUDGE. nj.