IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 17013 of 2009(V) ------------------------------------- PETITIONER(S): ------------------------ A.G.RAVINDRANATHAN, PROPRIETOR, M/S.UDAYA PLASTICS PERINGANOOR, RESIDING AT PRASANTHI, KRISHNA GARDENS, VELLAT LANE, THRISSUR-11. BY ADV. MR.C.E.UNNIKRISHNAN RESPONDENT(S): ---------------------------- 1. THE AUTHORISED OFFICER AND GENERAL MANAGER, THRISSUR URBAN CO-OP. BANK LTD., MISSION QUARTERS, THRISSUR-680 001. 2. THRISSUR URBAN CO-OP. BANK LTD., MISSION QUARTERS, THRISSUR-680 001 REPRESENTED BY TS GENERAL MANAGER. 3. REGISTRAR OF CO-OP. SOCIETIES, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM. ADV. MR.C.D.DILEEP,SC,TRICHUR URBN CO-OPBAN BY GOVT. PLEADER MR.P.K.BABU FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 17013 OF 2009 ......................................................................... Dated this the 22nd July, 2009 J U D G M E N T The petitioner has approached this Court challenging the coercive steps taken by the respondent Bank invoking the provisions under the SARFAESI Act. It is also brought to the notice of this Court that the petitioner had approached this Court earlier under similar circumstances by filing O.P.No.25930 of 2002 , which culminated in Ext. P6 judgment holding that if the petitioner wanted to save the property concerned, the petitioner had to submit clear proposal before the Sale Officer as clearly observed in paragraph 4 of the verdict and stipulating the course to be adopted in such a situation. It was also pointed out that the petitioner could move for the benefit of OTS, if any; simultaneously directing the Bank to intimate the petitioner within one month as to the actual arrears, after calculations were made in accordance with Ext. P2 order issued by the Co- W.P.(C) No. 17013 OF 2009 2 operative Tribunal, if the same had attained finality. 2. There is no case for the petitioner that the direction contained in Ext. P2 has not attained finality. The learned Counsel for the respondent Bank submits that in compliance with Ext. P6 judgment, the position was conveyed to the petitioner as per Ext.P7, followed by Ext.P12, whereby the petitioner was directed to pay the balance amount with interest. But neither Ext.P7 nor Ext. P12 does clearly specify as to the 'actual liability' to be cleared by the petitioner. 3. It is very much obvious from Ext. P12 that the Bank has referred to various letters sent by the Bank in response to the letters written by the petitioner, which however do not form a part of the present proceedings. But it is discernible from Ext. P11 and P13 representations preferred by the petitioner himself that the actual due amount had already been conveyed by the Bank to the petitioner as per letter dated 11.06.2008 showing the actual amount stated as due for the period upto 30.05.2008 as Rs.3070886/- and vide notice dated 09.02.2009, whereby the amount got mounted upto Rs.3414794/-. From Exts. P11 W.P.(C) No. 17013 OF 2009 3 and P13, it is seen that the petitioner was doubting the correctness of the figures supplied by the Bank , which, however, does not form the subject matter of challenge in the present Writ Petition. 4. The learned Counsel for the petitioner submits that as per Ext.P6 verdict, the petitioner was also given the liberty to approach the Bank for availing the benefit of OTS, which was stated as in existence as on the date of passing the said verdict, i.e., on 08.02.2008. The learned Counsel for the petitioner submits that even though the petitioner approached the Bank and prayed for the benefit of OTS, the same was not considered or extended by the respondent Bank. 5. The learned Counsel for the respondent Bank submits that the benefit of OTS was not available to be extended to the petitioner and that no benefit can be given to the petitioner in this regard in view of the course and conduct being pursued by the petitioner. It is stated in the counter affidavit filed by the respondents that the petitioner, notwithstanding the liability to satisfy the amount, made some clandestine dealings with some W.P.(C) No. 17013 OF 2009 4 other persons and that at the instance and instigation of the petitioner, one such person, to whom the petitioner had agreed to sell the mortgaged property without notice to the respondent Bank, had approached this Court by filing W.P.(C) 21315 of 2008, which however was dismissed on 02.12.2008. It is also pointed out that subsequently, when the Bank resorted to the proceedings under the SARFAESI Act, the same was challenged by the said person, by filing W.P.(C) 9574 of 2009, which also ended up in dismissal on 25.03.2009. 6. Considering the sequence of events, the challenge raised by the petitioner against the proceedings taken by the respondent Bank under the SARFAESI Act does not call for any interference. The only point that can be looked into is, whether the Bank had considered the request made by the petitioner, to have the benefit of OTS as specified in paragraph 4 of Ext.P6 judgment, to which, the answer given by the Bank is that no such Scheme was available on the relevant date. This however does not find a place in the counter affidavit filed by the Bank. 7. The learned Counsel for the petitioner submits that the W.P.(C) No. 17013 OF 2009 5 Bank has not considered the above specific aspect and that the Scheme was very much available on the date of passing Ext. P6 judgment. The learned Counsel for the petitioner, in support of the above submission, made available a copy of the judgment dated 04.08.2008 passed by this Court in W.P.(C) 21616 OF 2008, whereby the benefit of OTS was extended by the Bank to the petitioner therein. It is very much clear from the said judgment that the Counsel for the respondent Bank made a submission before the Court that the Bank was very much prepared to extend the benefit of Circular No.30/07, the tenure of which was extended by Circular No.3/08. This in turn was recorded by the Court and accordingly, necessary directions were given while passing the said judgment on 04.08.2008. 8. Ext. P6 judgment was passed on 08.02.2008, i.e., much prior to the judgment passed by this Court in W.P.(C) 21616 of 2008, on 04.08.2008. This being the position, the stand taken by the Bank as now put forth that the benefit of OTS was not available on the relevant date, cannot be swallowed without a pinch of salt . The respondent Bank cannot choose to W.P.(C) No. 17013 OF 2009 6 extend the benefit of the concerned Circular providing the benefit of OTS to persons on 'pick and choose' basis. Since the Bank has already made a submission before this Court that the benefit of the Circular No.30/07 stood extended by Circular No.3/08 and the benefit was accordingly extended to the petitioner in W.P.(C) 21616 of 2008, this Court does not find any reason to take a different turn to hold that the petitioner in the present Writ Petition is not entitled to have his case considered in terms of the aforesaid Circular; particularly when nothing has been mentioned with regard to the applicability of OTS or as to the compliance with the directions given by this Court in Ext.P6 judgment in this regard. 8. In the above facts and circumstances, the respondent is directed to consider the case of the petitioner as to the eligibility under OTS as per the Circular No.30/07, the tenure of which was extended by Circular 3/08 and the benefit was given to the petitioner in W.P.(C) No. 21616 of 2008. Necessary orders shall be passed in this regard, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within W.P.(C) No. 17013 OF 2009 7 one month from the date of receipt of a copy of the judgment . It is made clear that till such appropriate orders are passed in this regard, all further coercive steps stated as being pursued against the petitioner under the SARFAESI Act shall be kept in abeyance . It is further made clear that once the actual amount liable to be paid by the petitioner, after considering the matter in accordance with the Circular Nos.30/07 and 3/08, is conveyed to the petitioner, the same shall be cleared by the petitioner in the manner as specified by the respondent Bank. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk