IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 28063 of 2010(G) -------------------------- PETITIONER(S): ---------------------- KRISHNANKUTTY, S/O RAMAN VADAKKEVEETTIL HOUSE, POONKUNNAM, THRISSUR. BY ADV. SRI.T.N.MANOJ RESPONDENT(S):/ WRIT PETITIONER & RESPONDENTS --------------------------------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY DEPARTMENT OF CO-OPERATION. 2. KRISHNANKUTTY, S/O.AYYAPPAN, KADAVILPURACKAL, KURUMBILAVU,THRISSUR DISTRICT. 3. THRISSUR DISTRICT CO-OPERATIVE BANK LTD., THRISSUR, REPRESENTED BY ITS SECRETARY. ADV. SRI.V.M.KRISHNAKUMAR FOR R2 GOVERNMENT PLEADER MR.P.M.MANOJ STANDING COUNSEL MR.P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb WP(C).No. 28063 of 2010 A P P E N D I X PETITIONER'S EXHIBITS:- P1: COPY OF THE JUDGMENT DATED 11.8.2009 IN W.P.(C)NO.14987/2009 P2: COPY OF THE JUDGMENT DATED 16.9.2009 IN W.A.NO.1951/2009 P3: INTERIM ORDER DATED 23.4.2010 IN W.A.NO.747/2010 P4: ORDER DATED 18.8.2010 OF THE 1ST RESPONDENT RESPONDENTS' EXHIBITS:- R2(a): COPY OF THE APPEAL FILED BY THIS RESPONDENT BEFORE THE STATE //TRUE COPY// P.A.TO JUDGE P.N.RAVINDRAN, J. ---------------------------------- W.P.(C)No. 28063 OF 2010 --------------------------------------------- Dated this the 22nd day of March, 2011 J U D G M E N T The prayer in this writ petition filed by the purchaser in auction of an item of immovable property belonging to the 2nd respondent that was brought to sale and sold by the 3rd respondent bank on 20.11.2008, is to set aside Ext.P4 order dated 18.8.2010, whereby the Government set aside the order passed by the Joint Registrar of Co-operative Societies confirming the said sale. The brief facts of the case are as follows:- 2. The 2nd respondent availed a loan from the 3rd respondent bank. When the loan was not repaid, the bank filed ARC No.880 of 2004 before the Assistant Registrar of Co- operative Societies, Thrissur. An award was passed and in execution of the award, the immovable property belonging to the 2nd respondent was brought to sale on 20.11.2008 for realising the sum of Rs.1,30,000/-. The petitioner was the successful W.P.(C)No. 28063 OF 2010 2 bidder in the said auction. Aggrieved by the sale, the 2nd respondent filed W.P.(C) No.37749 of 2008 in this Court. The said writ petition was dismissed, reserving liberty with the 2nd respondent to challenge the sale in other appropriate proceedings. The 2nd respondent thereafter filed an application dated 16.12.2008 to set aside the sale. Copies of the said application were submitted before the bank as well as the Assistant Registrar of Co-operative Societies, who passed the award. A copy of thereof was submitted to the Joint Registrar of Co-operative Societies also. The Joint Registrar in turn, forwarded it to the Assistant Registrar, who by order passed on 20.03.2009 rejected the application on the ground that it was belatedly received. The 2nd respondent thereupon filed W.P(C) No.14987 of 2009 in this Court challenging that order. The said writ petition was disposed of by Ext.P1 judgment delivered on 11.8.2009 holding that the 3rd respondent therein, the Joint Registrar of Co-operative Societies, Thrissur ought to have himself disposed of the application to set aside the sale instead of forwarding it to the Assistant Registrar for disposal. The order passed by the Assistant Registrar rejecting the application W.P.(C)No. 28063 OF 2010 3 dated 16.12.2008 to set aside the sale was accordingly quashed. However, in order to give a quietus to the issue, this Court, after quashing the order passed by the Assistant Registrar on 20.3.2009 rejecting the application dated 16.12.2008 to set aside the sale directed as follows:- “6. However, in order to give a quietus to the issue, particularly, taking into account the fact that the petitioner is a Cooli worker, who is chronically ill, I think that yet another opportunity should be given to the petitioner to salvage the property duly compensating the 4th respondent and also discharging the liability of the Bank. Accordingly, to give a quietus to the issue, the writ petition is ordered as follows:- That, if within four weeks from today, the petitioner refunds Rs.1,30,000/- deposited by the 4th respondent along with 9% interest thereon from 18.12.2008 till date of payment, the Bank will release the document of title deposited by the petitioner to him. It is further directed that if out of Rs.1,30,000/- deposited by the 4th respondent, any amount is in excess of the actual liability that is due from the petitioner to the Bank, such excess amount will also be refunded to the petitioner. 7. Needless to say that in any event if the petitioner does not make payment as ordered above, the respondents will take necessary action for confirming the sale in favour of the 4th respondent and issuing sale certificate.” W.P.(C)No. 28063 OF 2010 4 3. The 2nd respondent did not comply with the said direction. Instead he carried the matter in appeal by filing Writ Appeal No.1951 of 2009. By Ext.P2 judgment delivered on 16.9.2009, the Division Bench of this Court enlarged the time for remitting the sum of Rs.1,30,000/- by 'three months'. The said period expired on 16.12.2009. The 2nd respondent did not deposit the sum of Rs.1,30,000/- within the extended time also. The sale was thereupon confirmed on 11.01.2010. The 2nd respondent thereafter filed a petition dated 26.2.2010 before the State Government under section 83(1)(j) of Kerala Co-operative Societies Act. He later filed W.P(C) No.7824 of 2010 in this Court, wherein he sought expeditious disposal of the said appeal and a stay of all further proceedings pursuant to the order confirming the sale, pending disposal of the said appeal. W.P(C) NO.7824 of 2010 came up for admission before a learned single Judge of this Court on 17.03.2010 and was disposed of that day itself with a direction to the 1st respondent to dispose of the appeal filed by the 2nd respondent within two months from the date of receipt of a copy of the judgment. On coming to know of the said direction, the petitioner herein filed W.A.No.747 of W.P.(C)No. 28063 OF 2010 5 2010, wherein Ext.P3 interim order was passed on 23.4.2010 staying the operation of the judgment of the learned single Judge. While the said writ appeal was pending, a notice was issued to the petitioner herein and others inviting them to appear for a hearing on the appeal dated 26.2.2010 filed by the 2nd respondent. In view of the said notice, the learned counsel appearing for the petitioner sought permission to withdraw W.A.No.747 of 2010. Accordingly, by judgment delivered on 5.7.2010, W.A.No.747 of 2010 was dismissed as withdrawn. The judgment in W.A.No.747 of 2010 reads as follows:- “When this appeal is taken up for hearing, learned counsel for the appellant seeks permission to withdraw the appeal. Permission is granted and the writ appeal is dismissed as withdrawn. 2. Respondent No.2 herein shall dispose of Ext.P3 appeal as directed by the learned Single Judge, within tow months from the date of receipt of a copy of this judgment”. 4. The Government thereafter considered the appeal petition dated 26.02.2010 filed by the 2nd respondent and passed Ext.P4 order dated 18.8.2010 setting aside the order passed by the Joint Registrar of Co-operative Societies confirming the sale. W.P.(C)No. 28063 OF 2010 6 The Government held that, if the sale held on 20.11.2008 is confirmed, the 2nd respondent will put to serious prejudice. The Government also permitted the 2nd respondent to settle the loan in six equal quarterly installments together with 9% interest. The Government also directed that the amount deposited by the petitioner shall be refunded to him by the 3rd respondent bank. There was also further direction that, if any amount is paid to the petitioner by way of interest, that shall be met by the bank. The petitioner has aggrieved thereby filed this writ petition. The main contention raised by the petitioner is that in view of the directions issued by this Court in Ext.P1 judgment, which has attained finality, the Government erred in setting aside the order confirming the sale. The 2nd respondent has filed a counter affidavit raising various contentions, including the contention that only a portion of the property should have been sold to realise the amount due from him. 5. I heard Sri.T.N.Manoj, learned counsel appearing for the petitioner, Sri.P.M.Manoj, the learned Government Pleader appearing for the 1st respondent and Sri.P.C.Sasidharan, the learned standing counsel appearing for the 3rd respondent. I W.P.(C)No. 28063 OF 2010 7 have also gone through the pleadings and the materials on record. The fact that as on 20.11.2008 the sum of Rs.1,30,000/- was payable by the 2nd respondent to the 3rd respondent in terms of the award passed in ARC No.880 of 2004 is not in dispute. It is also not in dispute that two days prior to the date of the sale namely on 18.11.2008, the petitioner herein had deposited the sum of Rs.1,30,000/-. The property sold in the auction held on 20.11.2008 is 11 cents of land with a residential building. Though this Court had by Ext.P1 judgment delivered on 11-8-2009 directed the Joint Registrar to examine the application submitted by the 2nd respondent on 16.12.2008 to have the sale set aside, this Court had granted four weeks time to the 2nd respondent to pay the sum of Rs.1,30,000/- deposited by the petitioner along with interest at 9% per annum from 18.12.2005 till the date of remittance. Such a condition was imposed not to liquidate the liability of the 2nd respondent to the 3rd respondent bank, but to protect the interests of the petitioner. In other words, by Ext.P1 such a deposit was required to be made as a condition for the Joint Registrar of Co-operative Societies to consider the application dated 16.12.2008 filed by the 2nd W.P.(C)No. 28063 OF 2010 8 respondent under rule 83 of the Kerala Co-operative Societies Rules to have the sale set aside. The said judgment has become final. The Division Bench of this Court had on appeal filed by the 2nd respondent given him time till 16.12.2009 to pay the sum of Rs.1,30,000/- with interest at 9% per annum from 18.12.2008 till the date of deposit. The 2nd respondent did not comply with the said direction also. As a result of that, the petitioner is put serious prejudice. Even as on today, the 2nd respondent has not deposited the sum of Rs.1,30,000/- with interest thereon calculated at 9% per annum from 18.12.2008 till the date of deposit. The Government set aside the order passed by the Joint Registrar of Co-operative Societies on 11.01.2010 confirming the sale on the ground that the price fetched in the sale was very low when compared to the market value of the property, which comprises of 11 cents of land with a residential building therein. The Government had by the impugned order also directed the petitioner to settle the loan amount in six equal quarterly installments. It is however not in dispute that the 2nd respondent has not deposited the sum of Rs.1,30,000/- and interest thereon at 9% per annum in terms of the directions W.P.(C)No. 28063 OF 2010 9 issued by this Court in Exts.P1 and P2 judgments or paid any of the instalments as directed by the Government. 6. As noticed above, the subject matter of the dispute is a residential house situated in 11 cents of land, wherein the 2nd respondent is residing. The amount fetched in the sale held on 20.11.2008 is only Rs.1,30,000/-. In the said circumstances, I am of the opinion that interests of the petitioner can be safeguarded by directing the 2nd respondent to pay over to him the sum of Rs.1,30,000/- together with interest thereon at 12% per annum with effect from 18.11.2008 till the date of payment. I accordingly dispose of the writ petition with a direction that in the event of the 2nd respondent depositing with the 3rd respondent bank for payment to the petitioner the sum of Rs.1,30,000/- together with interest thereon calculated at the rate of 12% per annum from 18.12.2008 till the date of payment, within two months from today, the sale held on 20.11.2008 shall stand set aside. Upon such deposit being made, the amount deposited shall be paid over to the petitioner within one week from the date of deposit. If the 2nd respondent fails to deposit the said amount within the time stipulated above, Ext.P4 order W.P.(C)No. 28063 OF 2010 10 passed by the Government shall stand set aside and the sale held on 20.11.2008 shall stand confirmed. In both contingencies, it will be open to the 3rd respondent Bank to appropriate the sum of Rs.1,30,000/- deposited by the petitioner on 18.11.2008. It will be open to the petitioner, in the event of the sale being confirmed to take steps to obtain delivery of the property in accordance with law. P.N.RAVINDRAN, JUDGE dmb