IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 WP(C).No. 7092 of 2010(J) ------------------------- PETITIONER(S): --------------- 1. K.V.PRIYAN, S/O.LATE VELAYUDHAN, KALLIKADAVIL HOUSE, CHITTISSERI PO, THRISSUR DISTRICT. 2. SAROJINI, W/O.LATE VELAYUDHAN, KALLIKADAVIL HOUSE, CHITTISSERI (PO), THRISSUR DISTRICT. BY ADV. SRI.C.E.UNNIKRISHNAN RESPONDENT(S): --------------- 1. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THE ARBITRATOR CUM SPECIAL SALE OFFICER, THRISSUR DISTRICT CO-OPERATIVE BANK LTD, THRISSUR. 2. THRISSUR DISTRICT CO-OPERATIVE BANK LTD, PUTHUKKAD BRANCH, REPRESENTED BY ITS GENERAL MANAGER. 3. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. ADV. SRI.P.C.SASIDHARAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J ........................................... WP(C).No.7092 OF 2010 ............................................ DATED THIS THE 18TH DAY OF MARCH, 2010 JUDGMENT The first petitioner had availed a loan from the second respondent in the year 2003, for which, the second petitioner who is his mother had stood as surety. The amount of loan that was availed was Rs.2,70,000/-. The loan was granted on the security of an item of property, 22 cents in extent that belong to the petitioners jointly. According to the petitioners, the loan was availed of for starting a brick manufacturing unit, but due to various set backs, the unit ran into losses and repayment of instalments fell into arrears. 2. In the above circumstances, the Bank filed ARC No.448 of 2006 for recovery of the amounts due and an award has been passed in favour of the Bank. Thereafter, proceedings were taken under Rule 81 (e) of the Kerala Co-operative Societies Rules for execution of the award and the property of the petitioner has been notified for sale. According to the petitioner, the entire property is not required to be sold to satisfy the decree debt. The petitioners also contend that they Wpc 7092/2010 2 are entitled to the benefit of Circular No.02/10 dated 14.1.2010 issued by the third respondent, which is Ext.P2. Therefore, the petitioners submitted Ext.P3 to the second respondent seeking the benefit of the said Circular. The complaint of the petitioners is that no reply has been received in response to Ext.P3. At the same time, the Bank has proceeded to conduct the auction sale of the property. The above writ petition is filed by the petitioners in the said circumstances. 3. The counsel for the second respondent has filed a statement in answer to the allegations in the writ petition. As per the statement, the contention of the Bank is that they have obtained an award in ARC.No.448 of 2006, which has become final. E.P.860 of 2009 is filed in execution of the said award. According to the Bank, the petitioners have no right to challenge the award that has already become final. The One Time Settlement Scheme introduced by Circular No.2/2010 was available till 15.3.2010. Since the petitioners did not avail of the benefit of the said Scheme, it is contended that petitioners are not entitled to claim the benefits thereof. 4. I have heard Adv.C.E.Unnikrishnan for the petitioners and Wpc 7092/2010 3 Adv.P.C.Sasidharan for the second respondent. 5. According to the counsel for the petitioners, the Bank has not furnished the exact amount that was due from the petitioners after waiving the interest and penal interest that they had charged. On furnishing such correct amount, he would pay the amount due in instalments. According to the counsel for the second respondent, it was upto the petitioner to have contacted the Bank and ascertained the exact amount that was due and thereafter cleared the entire dues. Since he had not done so before 15.3.2010, he is not entitled to claim the benefits of the said Circular, as the same is no longer in force. 6. As per interim order dated 5.3.2010, the petitioners were directed to pay an amount of Rs.1,00,000/- as a condition for stay of further proceedings to auction the properties of the petitioners. It is submitted by the counsel for the petitioners that an amount of Rs.1,00,000/- has been paid in compliance with the interim order. However, the counsel for the second respondent Bank points out that a balance amount of about Rs.3,75,000/- is still due to the Bank. The petitioners are not in a position to pay the said amount in a lump. Since Wpc 7092/2010 4 the petitioners have already paid an amount of Rs.1,00,000/- towards the amounts demanded, the petitioners can be permitted to pay off the balance amount in six equal monthly instalments. 7. In the above circumstances, this writ petition is disposed of directing the petitioners to pay the balance amount due and payable to the second respondent, Bank in six equal monthly instalments, starting from 12.4.2010. The subsequent monthly instalments shall be paid on the 12th of every succeeding month. If the petitioners commit default in payment of two consecutive instalments, the Bank shall be free to proceed with the action to recover the entire amount in accordance with law. The second respondent Bank is also directed to consider the eligibility of the petitioners to the benefits of Circular No.2 of 2010 as claimed in Ext.P3 and to pass orders thereon in accordance with law. If it is found that the petitioners are entitled to any benefit as per the said Circular, the said benefit shall also be made available to them. K.SURENDRA MOHAN, JUDGE lgk