IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 6168 of 2005(H) ------------------------------------- PETITIONERS: --------------------- 1. M.M.ANTHRU, MUKALEL HOUSE, PALLARIMANGALAM P.O., ERNAKULAM DISTRICT. 2. PATHUMMA ANTHRU, W/O. M.M.ANTHRU, MUKALEL HOUSE, PALLARIMANGALAM P.O.,ERNAKULAM DISTRICT. BY ADV. SRI.P.K.ABOOBACKER (EDAPPALLY). RESPONDENTS: ----------------------- 1. THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, THIRUVANANTHAPURAM. 2. DEPUTY TAHSILDAR (REVENUE RECOVERY), TALUK OFFICE, KOTHAMANGALAM. 3. THE BRANCH MANAGER, UNION BANK OF INDIA, KOTHAMANGALAM BRANCH. BY GOVERNMENT PLEADER SRI. K.V. MANOJ KUMAR, ADV. SRI. A.S.P.KURUP, S.C, UBI - R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6168/2005-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. 23/08/00 ISSUED BY THE R.3. TO THE P.2. EXT.P.2: COPY OF THE NOTICE DTD. 05/08/04 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.3: COPY OF THE NOTICE DTD. 25/10/04 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.4: COPY OF THE RETURNED REGD. COVER. EXT.P.5: COPY OF THE ORDER DTD. 08/02/05 ISSUED BY THE R.1. TO THE PETITIONERS. RESPONDENTS' EXHIBIT: EXT.R3.A: COPY OF THE LOAN ACCOUNT MAINTAINED BY THE BANK IN THE NAME OF BORROWER. //TRUE COPY// prv. ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 6168 of 2005 -------------------------------------------------------- Dated: JUNE 18, 2008 JUDGMENT The challenge is against Ext.P5, an order passed by the 1st respondent rejecting a representation made by the petitioner against the recovery proceedings that were initiated at the instance of the 3rd respondent bank. 2. The facts of the case are that: In 1988 petitioners' son had availed of an agricultural loan of Rs.25000/- from the 3rd respondent bank. The petitioners were the sureties and their property was also mortgaged. Default was committed and by 1998 recovery proceedings were initiated for realising Rs.95428/- with interest thereon. That was challenged before this court in OP No.10671/1999 resulting in judgment dated 23.4.1999. By that judgment this court directed the 1st respondent to consider the representation made by the petitioners which was produced as Ex.P6. It was also directed that recovery proceedings will remain stayed on condition that the petitioners remit Rs.20000/-. It is stated that this amount was remitted and the petitioners enjoyed the benefit of the stay. W.P.(C) 6168 of 2005 2 3. Pursuant to the aforesaid judgment, 1st respondent issued Ext.P2 notice in August 2004 scheduling the hearing to 25.8.2004. Though notice was served, the petitioners asked for time and thereupon the hearing was postponed. It is stated that thereafter by Ext.P3 notice, issued on 30.10.2004, the hearing was scheduled to 5.11.2004. Petitioners stated that on receipt of the notice they forwarded a statement and a request for adjournment. It is stated that Ext.P4 is the cover in which the aforesaid statement and request were forwarded under registered post to the officer who issued Ext.P3. It is submitted that Ext.P4 cover was returned with the endorsement “addressee not known”. It is stated that the hearing was held as scheduled in Ext.P3 and that resulted in Ext.P5 order. In this writ petition the main complaint that is now raised is that it was without opportunity of hearing as directed in the judgment dated 23.4.1999, their representation was decided by the 1st respondent and therefore Ext.P5 is illegal. 4. The bank has filed a counter affidavit resisting the claims of the petitioners. According to the bank, it has been the habit of the petitioners and their son to avail of loans in the W.P.(C) 6168 of 2005 3 name of different persons and commit default. It is also stated that other recovery proceedings are also pending against them. 5. Yet another point that is urged against the petitioner is that while passing the order on 22.2.2005 in this writ petition, though this court had imposed a condition for remittance of Rs.25000/-, even that has not been complied with by the petitioners. The Bank submits that the amount due from the petitioners as at present is more than Rs.1.5 lakh. It is stated that the only intention of the petitioners is to avoid the payment and therefore this petition is ill-motivated. 6. It appears to be true that Ext.P4 cover was returned without serving the same on the addressee. But then, with the address shown in Ext.P4, even if it was not served, there is nothing surprising in the action of the postal authorities. 7. Going by the endorsements on Ext.P4, the cover would have come back to the petitioners before the date of hearing, but the fact remains that the petitioners did not do anything further thereafter. Therefore, for the only reason that Ext.P4 statement and request for adjournment were returned, I am not inclined to set aside Ext.P5 at this distance of time This is all the W.P.(C) 6168 of 2005 4 more so, for the reason that the liability cannot be disputed by the petitioners whose son had availed of the loan and that too with the petitioners themselves as sureties and mortgaging immovable properties. 8. I asked the learned counsel for the petitioners to argue on the merits of the contentions that were raised in the representation which is directed to be decided by the Government and the answer was that they wanted to get more time for effecting payment. Since the loan was availed of in 1988, and as more than 20 years have elapsed, there is no bona fides in the request for more time now made by the counsel for the petitioners. Therefore, there is nothing on the merits of the claim raised by the petitioners either. In view of this the writ petition is only to be dismissed and I do so. ANTONY DOMINIC JUDGE mt/-