IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 14266 of 2010(G) ------------------------------------------ PETITIONER(S): ------------------------ 1. BABY RENJITH, S/O.BHASKARAN, NADUVILAPURAKKAL HOUSE, LALOOR ROAD, AYYANTHOLE P.O., THRISSUR DISTRICT. 2. UMADEVI, W/O.BABY RENJITH, NADUVILAPURAKKAL HOUSE, LALOOR ROAD, AYYANTHOLE P.O., THRISSUR DISTRICT. BY ADV. SRI.C.E.UNNIKRISHNAN RESPONDENT(S): --------------------------- 1. JOINT REGISTRAR (GENERAL) OF CO-OP. SOCIETIES, THRISSUR. 2. THE ASSISTANT REGISTRAR OF CO-OP.SOCIETIES, THE ARBITRATOR CUM SPECIAL SALE OFFICER, THRISSUR DISTRICT CO-OP. BANK LTD.,THRISSUR. 3. THRISSUR DISTRICT CO-OP. BANK LTD., PUTHUKKAD BRANCH, REPRESENTED BY ITS GENERAL MANAGER. *ADDL.R4 IMPLEADED: R4. SRI.T.V. MURALEEDHARAN, S/O.T.K. VELAYUDHAN, THYVALAPPIL VEEDU, AVANOOR (PO), THRISSUR DISTRICT. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD. 20/05/2010 IN I.A.NO.6195/10) R1 & R2 BY GOVERNMENT PLEADER SRI. MUHAMMED HASHIM R3 BY ADV. SRI. P.C. SASIDHARAN, SC ADDL.R4 BY ADV. SRI.P.SANTHOSH (PODUVAL) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14266/2010 G APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE NOTICE DTD. 23/12/2009. P2: COPY OF THE PETITION FILED BY THE 1ST PETITIONER DTD. 01/02/2010. P3: COPY OF THE PETITION FILED BY THE 1ST PETITIONER DTD. 06/02/2010. P4: COPY OF THE LETTER OF THE HON'BLE MINISTER FOR CO-OPERATION VIDENO.109/M/(C,C)10/VIP DTD. 09/02/2010. P5: COPY OF THE LETTER FROM THE 2ND RESPONDENT DTD. 09/02/2010. P6: COPY OF THE PETITION FILED BY THE PETITIONERS DTD. 01/03/2010. P7: COPY OF THE ORDER OF THE 1ST RESPONDENT DTD.21/04/2010. P8: COPY OF THE CERTIFICATE DTD. 04/05/2010. RESPONDENT'S EXHIBITS: R3(A): COPY OF THE ORDER OF THE JOINT REGISTRAR DTD. 27/03/2010. R3(B): COPY OF THE JUDGMENT IN WP(C) NO.13813/2009 DTD. 23/05/2009. R3(C): COPY OF THE JUDGMENT IN WP(C) NO.17930/09 DTD. 25/11/2009. R3(D): COPY OF THE JUDGMENT DTD.1/02/2010. R3(E): COPY OF THE LOAN SANCTION ORDER ALONG WITH THE AGREEMENT. /TRUE COPY/ P.S.TO JUDGE Kss K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 14266 OF 2010 G ----------------------------------------------------------- Dated this the 20th July, 2010. JUDGMENT The petitioners have filed this writ petition challenging Ext.P7 order by which an auction has been confirmed allegedly without adjudicating a claim petition filed by the first respondent. 2. The petitioners had availed overdraft facilities from the second respondent bank to the tune of Rs.15 lakhs on 24/3/2009 and 6/4/2009. However, repayment of the said amount was defaulted by the petitioners. Therefore, ARC 1249/2006 was filed by the bank, which resulted in an award. Even after the award since the amount was not paid by the petitioners, recovery proceedings were initiated against the petitioners. Thereupon, the petitioners filed W.P(C)17930/2009 before this Court challenging the coercive action. This Court intervened in the matter and gave an opportunity to the petitioners to clear the dues by permitting deposit of an amount of Rs.8 lakhs within a month. However, the petitioner did not comply with the said order in spite of an extension of time granted. Later on, the writ petition was dismissed on 25/11/2009. Thereafter when fresh proceedings were initiated against the petitioners for recovery of the amounts due, WPC 14266/2010 2 WP(C) 567/2010 was filed. In the said writ petition the bank expressed its desire to settle the matter provided, a substantial payment was made by the petitioners. Accordingly the petitioners were directed to pay an amount of Rs.10 lakhs before 25/1/2010. The said payment was also not made. Instead, the petitioners sought for extension of time for making the payment. The said writ petition was dismissed by Ext.R3(d) judgment. Subsequently, the properties of the petitioners were brought to sale and were sold. The properties were purchased by the additional fourth respondent. As per Ext.P7, the sale has also been confirmed. 3. The present complaint of the petitioners is that, though they had submitted a petition for setting aside the sale, as evidenced by Ext.P6, the same was neither considered nor were any orders passed thereon. Therefore, Ext.P7 is challenged as passed without considering the objections in Ext.P6. It is also the contention of the petitioners that the sale was illegal for the reason that Rule 81(f) of the Co-operative Societies Rules, 1969 stipulates a fresh proclamation whenever a sale is adjourned for a period longer than seven days. No such fresh proclamation having been made in the present case, it is contended that the sale is illegal and liable to be set aside. WPC 14266/2010 3 4. Adv. P.C.Sasidharan who appears for the third respondent bank points out that the petitioners have already been given a number of opportunities to pay the amounts that are due. However, they did not avail of the opportunities or pay the amounts. It is submitted that the petitioners are interested only in protracting the proceedings and not at all interested in liquidating the liability due to the bank. It is submitted that, more than sufficient opportunity has been granted to the petitioners. Therefore, there is no scope for showing any further indulgence to them. In view of the above, he prays for dismissal of this writ petition. 5. Shri.Santhosh Poduval who appears for the additional fourth respondent submits that an amount of Rs.90 lakhs has been deposited pursuant to the sale that has been confirmed in his favour and that the proceedings could not be completed because of the pendency of this writ petition. Therefore, according to him he is suffering financial loss. I have heard the learned Govt. Pleader Mr. Muhammed Hashim also in detail. I have anxiously considered the rival contentions of the parties. 6. It is to be noticed that though the petitioners had committed default in payment of the amounts due to the bank, they WPC 14266/2010 4 have not shown any interest in clearing the liabilities due, at any point of time throughout the court proceedings. Exts.R3(a), R3(b), R3(c) and R3(d) show that in the various writ petitions filed by them successively they had been given sufficient opportunities to pay the amounts due. The recovery proceedings were also kept in abeyance to provide an opportunity to them to clear the outstandings. However, no payment was made by them utilising any of the opportunities. Therefore, all the writ petitions ended in verdicts of dismissal. It was thereafter that the sale was conducted. Though the petitioner had filed Ext.P6 seeking to set aside the sale, as per Ext.R3(a) dated 27/3/2010, Ext.P6 had also been dismissed long before the present writ petition was filed. It was thereafter that Ext.P7 proceedings have been issued confirming the sale. Though the petitioners have a contention that Ext.R3(a) had not been communicated to them it is difficult to believe that the petitioners who have been pursuing these proceedings so vigorously would have kept quiet without making enquiries regarding the fate of Ext.P6 after having filed the same. Since the first respondent has gone into the contentions in Ext.P6 and has found that the allegations raised by the petitioners against the sale were not justified, the petitioners are not entitled to raise the said WPC 14266/2010 5 allegations afresh in this writ petition before this Court, especially so, when the petitioners have not challenged Ext.R3(a) even in this writ petition. Therefore, in the face of Ext.R3(a), the present contentions of the petitioners against the sale conducted by the third respondent and the issue of Ext.P7 cannot be countenanced. In view of the above this writ petition fails and is accordingly dismissed. K. SURENDRA MOHAN Judge jj WPC 14266/2010 6