IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 WP(C).No. 2972 of 2011(V) ------------------------- PETITIONER(S): --------------- 1. MIRIYAM, AGED 74 YEARS, W/O.CHERIYAN, MADAKKANKAL HOUSE, H.NO.VIII/529, EAST ELERY PANCHAYATH, MLLUKUNNU, KANNIVAYAL POST, KASARGOD DISTRICT- 670 511. 2. NIKHILA JOSE, AGED 24 YEARS, D/O.JOSE, MADAKKANKAL HOUSE, H.NO.E.P.VIII/529, MLLUKUNNU, KANNIVAYAL POST, KASARGOD DISTRICT- 670 511. BY ADV. SRI.NISHIN GEORGE VIJAYABABU SRI.BIJU ABRAHAM (KAIPPANPLACKAL) RESPONDENT(S): --------------- 1. THE MANAGER, KASARGOD DISTRICT CO-OPERATIVE BANK, CHITTARICKAL BRANCH, CHITTARIKKAL P.O., KASARAGOD DISTRICT, PIN-671 326. 2. THE ASSISTANT REGISTRAR/ARBITRATOR CUM SALE OFFICER, KASARGOD DISTRICT CO-OPERATIVE BANK, P.B.NO.48, NAYAKS ROAD, KASARGOD-671 121. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), CIVIL STATION, VIDYA NAGAR, KASARGOD-670 123. 4. THE SECRETARY TO THE GOVERNMENT, DEPT. OF CO-OPERATION, SECRETARIAT, PALAYAM, THIRUVANANTHAPURAM-695 001. BY SRI.M.SASINDRAN, SC FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.2972 of 2011 ------------------------------- Dated this the 28th day of January, 2011 J U D G M E N T The second petitioner herein, the grand daughter of the first petitioner, availed a loan from the Chittarickal Branch of the Kasargod District Co-operative Bank. The first petitioner is a guarantor to the said transaction. The lands belonging to her have been mortgaged as security for the loan. When the petitioners defaulted repayment of the loan, the bank filed A.R.C.No.57 of 2007 before the Assistant Registrar of Co-operative Societies. By Ext.P1 award passed on 6.6.2007, the Arbitrator directed the petitioner to pay the sum of Rs.1,27,716/- with future interest at the rate of 12% per annum on the principal amount of Rs.98,330/- from 11.10.2006 onwards. The award also directed that it will be open to the bank to recover the decree debt by sale of the security. Ext.P1 award has become final. Even thereafter, the petitioners did not pay the amount payable under the award. The bank thereupon took steps to execute the award. The sale officer issued Ext.P2 demand notice dated 27.1.2010 demanding payment of the sum of Rs.1,67,648/-. The petitioners were cautioned that if within 10 days, the said amount is not paid, the properties described in the said notice will be attached W.P.(C) No.2972 of 2011 2 and sold in public auction. Even thereafter, the petitioners did not pay the award amount. The bank thereupon put the properties to sale, after Ext.P3 sale notice was issued. The security for the loan transaction was accordingly sold on 29.12.2010 by public auction. In the auction held on 29.12.2010, one Sri.E.K.Sunil Kumar was the successful bidder. The property was sold to him for the sum of Rs.2 lakhs. As on the date of the sale, money due from the petitioners under Ext.P1 award was Rs.1,92,797/-. Immediately after the sale was held, the sale officer issued Ext.P4 notice dated 29.12.2010 informing the petitioners that the property has been sold to E.K.Sunil Kumar and that if the petitioners pay the sum of Rs.1,92,797/- and Rs.10,000/- being 5% of the bid amount within 30 days, the sale will stand set aside. The petitioners were further informed that if they fail to make the payment, the sale will be confirmed. When the period of 30 days stipulated in Ext.P4 notice was about to expire, the petitioners filed Ext.P6 representation before the Joint Registrar of Co- operative Societies (General), Kasargod, with a copy to the Secretary to Government, Co-operation Department, seeking various reliefs including a prayer to set aside the sale conducted on 29.12.2010. This writ petition was thereafter filed seeking the following reliefs:- W.P.(C) No.2972 of 2011 3 1. To issue a writ of mandamus or any other appropriate writ to quash Ext.P2 demand notice and direct the respondents to refrain from proceeding with the recovery steps pursuant to Ext.P1 award. 2. To issue a writ of mandamus or any other appropriate writ to quash Ext.P3 proclamation notice on the ground of illegality and fraud and direct the respondents to refrain from proceeding with the recovery steps pursuant to Ext.P1 award and Ext.P2 demand notice. 3. To issue a writ of mandamus or any other appropriate writ set aside the auction conducted on account of illegality and to declare the Execution petition No.22/2009, is filed o recover exorbitant amount and to dismiss the E.P.22/2009. 4. To issue a writ of mandamus or any other appropriate writ and direct the 3rd respondent to consider Ext.P6 petition of the first petitioner. 5. To grant such other reliefs as this Hon'ble Court deems fit. 2. It is stated that unless the sale is set aside, the petitioners will be put to serious prejudice. The petitioners also attack the sale on various grounds including the plea that the amount for which the property was brought to sale is in excess of the amount payable under the award. They have also alleged other procedural irregularities in the conduct of the sale. Rule 83(1) of the Kerala Co- operative Societies Rules provides that at any time, within 30 days from the date of sale of immovable property, the decree holder or any W.P.(C) No.2972 of 2011 4 person entitled to share in a rateable distribution of the assets or whose interests are affected by the sale, may apply to the Registrar to set aside the sale, on the ground of a material irregularity or mistake or fraud in publishing or conducting it. The petitioners have in Ext.P6 representation dated 22.1.2011 sought to set aside the sale held on 29.12.2010 on various grounds. Ext.P7 letter establishes the fact that the original of Ext.P6 was submitted before the Joint Registrar of Co-operative Societies (General), Kasargod on 25.1.2011. It is therefore evident that Ext.P6 representation was filed within 30 days from the date of sale, viz., 30 days from 29.12.2010. In such circumstances, as the petitioners have invoked a statutory remedy available to them, I am of the opinion that they should have awaited the outcome of the said representation before rushing to this Court. I therefore find no grounds to entertain this writ petition and to grant reliefs 1 to 3. The only relief that can be granted in the facts and circumstances of the case is to direct the third respondent to consider Ext.P6 representation and pass orders thereon, after notice to and affording the petitioners, the first respondent and the purchaser an opportunity of being heard. The writ petition is accordingly disposed of with a W.P.(C) No.2972 of 2011 5 direction to the third respondent to consider Ext.P6 representation and pass appropriate orders thereon, expeditiously and in any event within three months from today, after affording the petitioners, the first respondent and the purchaser in the auction held on 29.12.2010 an opportunity of being heard. P.N. RAVINDRAN, JUDGE. nj.