IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 WP(C).No. 6775 of 2006(F) ------------------------- PETITIONER(S): --------------- 1. M/S. VIJAYAM TOURIST COMPLEX, REPRESENTED BY ITS MANAGING PARTNER, V.VISWANAHA PILLAI, RAJASREE VIHAR, VADAKKENADA, ETTUMANOOR. 2. V. VISWANATHA PILLAI, RAJASREE VIHAR, VADAKKENADA, ETTUMANOOR. 3. VIJAYAM V. PILLAI, RAJASREE VIHAR, VADAKKENADA, ETTUMANOOR. BY ADV. SRI.S.RADHAKRISHNAN SRI.ARUN MOHAN RESPONDENT(S): --------------- 1. THE KERALA STATE CO-OPERATIVE BANK LTD., TRIVANDRUM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM. ADV. SRI.V.G.ARUN FOR R1 & 2 SRI.NAGARAJ NARAYANAN,SC,K.S.CO-OP BANK FOR R1 SRI.T.A.SHAJI,SC,KOTTAYAM DIST.COOP.BAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2009, ALONG WITH WPC NO. 33598 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX (WPC 6775 OF 2006) PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE LETTER NO. IAD/IL/309/361/89/90 OF THE FIRST RESPONDENT DATED 10.7.1989 EXT.P2 TRUE COPY OF THE AGREEMENT OF LOAN AND HYPOTHECATION ENTERED INTO BETWEEN THE 2ND PETITIONER AND THE FIRST RESPONDENT DATED 26.9.1989 EXT.P3 TRUE COPY OF THE REPLY LETTER IAID/IL/309/89-90 ISSUED ON BEHALF OF THE FIRST RESPONDENT DATED 27.6.1990 EXT.P4 TRUE COPY OF LETTER DATED 25.7.1991ADDRESSED TO THE FIRST RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER PASSED BY THE KERALA STATE CONSUMER REDRESSAL COMMISSION IN OP NO. 83 OF 1992 DATED 30.8.1995 EXT.P6 TRUE COPY OF THE ARBITRATION CASE (ORIGINAL NO. ARC 17 OF 1996) RENUMBERED S 3 OF 1998 DATED 20.1.1996 EXT.P7 TRUE COPY OF THE COMMON JUDGMENT PASSED BY THE KERALA CO-OP. TRIBUNAL IN AP NO. 115/2001 AND AP 116/2001, 129 OF 2003 DATED 14.11.2002 EXT.P8 TRUE COPY OF THE ORDER NO. ARC 3/1998 DATED 24.9.2003 EXT.P9 TRUE COPY OF THE JUDGMENT IN AP NO. 129 OF 2003 AND AP 134/2003 DATED 30.7.2005 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NO. 6775 OF 2006 & W.P.C. NO. 33598 OF 2005 -------------------------------------------- Dated this the 28th day of May, 2009 JUDGMENT Connected Writ Petitions are filed challenging the orders of the Co-operative Tribunal partly confirming the awards passed by the arbitrator against the petitioner and partly modifying the awards. I have heard counsel appearing for the petitioners and separate standing counsel appearing for respondents 1 and 2. Petitioners' grievance is that loan sanctioned by the first respondent was not released in terms of the schedule or at the ratio promised. Consequently there was delay in completion of the project and they have suffered loss. However, it is seen that above Rs. 7 lakhs was sanctioned for the hotel project of the petitioner, which was worth Rs. 13.2 lakhs. Even though first instalment released namely 2.83 lakhs itself is below the promised limit, petitioner accepted the amount and it is alleged that further instalments given were also not upto the agreed levels. I find that the total loan amount released is Rs. 6.07 lakhs out of the sanctioned 2 amount of Rs. 7 lakhs. By accepting first instalment, I feel, petitioner has allowed modification of the terms of the contract and so much so, petitioner cannot complain against violation of the agreement after the project is completed. Further on the whole, respondents have honoured their commitment because around more than 40% of the project cost is funded by them through loans. Therefore petitioner's claim for compensation is not tenable and the arbitrator rightly rejected it it and Tribunal confirmed it. It is seen that Tribunal has cancelled the award pertaining to demand of interest which is 2% above the contract rate. Besides this 1% commitment charges is also cancelled. The balance award amount pertains to debt amount with contract rate of interest. I do not think there is any justification for this Court to interfere with the award. However, for settlement of liability, petitioner is given freedom to approach respondents under OTS scheme, if any, pending. Writ petitions are disposed of as above. (C.N. RAMACHANDRAN NAIR) 3 Judge kk