IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 WP(C).No. 25485 of 2010(I) -------------------------- PETITIONER(S): --------------- MARY JOSE, W/O. JOSEPH, CHATHAMKUNNE HOUSE, KURINJI.P.O, KOTTAYAM DISTRICT BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): --------------- 1. THE JOINT REGISTER CO-OPERATIVE SOCIETIES KOTTAYAM, PIN-686602. 2. THE KADANADU SERVICE CO-OPERATIVE BANK LTD. REPRESENTED BY ITS SECRETARY KADANADU.P.O., KOTTAYAM DISTRICT, PIN-686651. ADV. SRI.MATHEW JOHN (K) FOR R2 BY GOVERNMENT PLEADER SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.25485/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE NOTICE DATED 3.8.2010 ISSUED BY THE 2ND RESPONDENT. EXT.P2. TRUE COPY OF TE RELEVANT EXTRACT OF THE NOTICE DATED 14.1.2010 FOR THE GENERAL BODY MEETING ISSUED BY THE 2ND RESPONDENT. EXT.P3. TRUE COPY OF THE LETTER DATED 1.3.2006 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.P4. TRUE COPY OF THE REPRESENTATION DATED 10.8.2010 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5. TRUE COPY OF THE REPRESENTATION DATED 10.8.2010 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R2(a) TRUE COPY OF THE SALE DEED DATED 13.1.2004 EXT.R2(b) TRUE COPY OF TAX RECEIPT DATED 14.10.2008 EXT.R2(c) TRUE COPY OF THE PROCEEDINGS DATED 13.9.2006 / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.25485 of 2010 ----------------------------------------- Dated this the 24th day of February, 2011 JUDGMENT The petitioner had availed a loan of Rs.50,000/- from the second respondent bank on 26.9.1997. When she committed default in repayment of the loan, the bank filed an arbitration case for realisation of the amount due from her. An award was passed and it was put in execution. In execution of the award a parcel of land belonging to the petitioner was brought to sale and sold in public auction on 23.3.2001. As on the date of sale the amount due from the petitioner was Rs.80,856/-. In the auction held on 23.3.2001 the bank purchased the property for the said sum of Rs.80,856/-. The petitioner did not even thereafter discharge her liability to the bank. She did not also challenge the sale held on 23.3.2001. The sale was accordingly confirmed by the Assistant Registrar of Co-operative Societies (General) Meenachil by order passed on 3.5.2001. Ext.R2(a) sale sannad was thereupon executed on 13.1.2004. The bank also effected mutation in the revenue records. Long thereafter, the bank applied to the Joint W.P(C) NO.25485/2010 -:2:- Registrar of Co-operative Societies for permission to sell the property in terms of rule 54(2) of the Kerala Co-operative Societies Rules. Prior to that the bank had also obtained the approval of the general body for such sale. After the Joint Registrar granted prior approval, the bank issued Ext.P1 notification dated 3.8.2010 proposing to sell the property by public auction on 17.8.2010. The petitioner thereupon submitted Ext.P4 representation dated 10.8.2010 before the Joint Registrar of Co-operative Societies praying for an opportunity to clear off the dues to the bank and for re-conveyance of the land. In that petition she claimed that she is in possession and enjoyment of the property and that the income from the rubber trees standing therein is her only means of livelihood. She also filed Ext.P5 representation before the Secretary of the second respondent bank requesting for re-conveyance of the property after receiving the amount due from her as on the date of sale together with interest at 6.28% per annum. This writ petition was thereafter filed seeking the following reliefs:- i) Issue a writ of certiorari quashing Ext.P1 auction notice and its further proceedings as arbitrary and illegal. ii) Issue a writ of mandamus directing the W.P(C) NO.25485/2010 -:3:- respondents No.1 to consider Ext.P4 representation and see that the petitioner is permitted to clear the loan dues and redeem the mortgaged land, by extending similar benefits as in Ext.P3, in the interest of justice. iii)Issue a writ of mandamus directing the respondents No.2 to consider Ext.P5 representation and permit the petitioner to clear the loan dues and redeem the mortgaged land, by extending similar benefits as in Ext.P3, in the interest of justice. The petitioner contends that in the case of two other debtors namely Sri.K.A.Augustine and Smt.Molly Augustine the bank had granted re-conveyance after the sale in its favour on the said debtors paying the amount due as on the date of sale with interest thereon at the rate of 6.28% per annum from the date of sale till realisation and other incidental charges. The petitioner submits that she is similarly placed and that she is willing to pay the entire amount due as on the date of sale together with interest at the rate of 6.28% per annum. 2. The second respondent has filed a counter affidavit resisting the writ petition. Relying on Ext.R2(a) sale certificate it is contended that the second respondent is in possession and enjoyment of the property and that as it has become the absolute W.P(C) NO.25485/2010 -:4:- owner it is not liable to re-convey the land to the petitioner. As regards the benefits extended to Sri.K.A.Augustine and Smt.Molly Augustine it is stated that their case merited sympathetic consideration and therefore the managing committee of the bank had recommended re-conveyance of the land and the said recommendation was accepted by the Assistant Registrar of Co- operative Societies who issued Ext.R2(c) proceedings dated 13.9.2006 permitting such re-conveyance. As regards the petitioner it is contended that her husband and son are well placed in life, that one of the petitioner's sons is a Priest and that the petitioner's daughter has been given in marriage and is well settled in life. In short the counter affidavit proceeds to state that the petitioner is not similarly placed as Sri.K.A.Augustine and Smt.Molly Augustine. 3. I heard Smt.Sakeena, learned counsel appearing for the petitioner and Sri.M.A.Asif, learned Government Pleader appearing for the first respondent and Sri.Mathew John, learned counsel appearing for the second respondent. From the materials on record it is evident that the land belonging to the petitioner, which is the subject matter of Ext.P1 sale notice, was sold in execution of an award on 23.3.2001. The said sale was confirmed on W.P(C) NO.25485/2010 -:5:- 3.5.2001 and a sale sannad was issued to the second respondent on 13.1.2004. The petitioner has not challenged the sale or its confirmation and it has become final. When the bank thereafter proceeded to sell the property of which it is the owner, by public auction after obtaining the prior approval of the general body and the Joint Registrar of Co-operative Societies in terms of rule 54(2) of the Kerala Co-operative Societies Rules the petitioner moved the bank and the Joint Registrar seeking re-conveyance of the property. Her claim is based on the contention that in a similar situation the bank had permitted two other creditors to obtain re- conveyance of the property on payment of the amount due as on the date of sale with future interest at the rate of 6.28% per annum. Ext.R2(c) proceedings dated 13.9.2006 and the contents of Ext.P3 letter dated 1.3.2006 establish the said fact. The main contention raised by the petitioner is that she is similarly placed and therefore, the bank should re-convey the property on her depositing the sum of Rs.80,856/- which was due from her as on the date of sale, namely 23.3.2001 with future interest thereon calculated at the rate of 6.28% per annum. 4. The second respondent bank is a co-operative society. Its main object is to advance loans and to render service to its W.P(C) NO.25485/2010 -:6:- members. Acquiring property and transacting business in real estate is not an object of the bank. Therefore, the primary concern of the bank should be to recover the loan advanced by it with interest and costs. It is no doubt true that under rule 54(2) the bank has to obtain the prior approval of the general body and the Joint Registrar of Co-operative Societies before disposing of its property. In the instant case such approval has already been obtained. In such circumstances I am of the opinion that the bank should reconvey to the petitioner the property described in Ext.R2(a) sale sannad, on the petitioner depositing with the bank the amount that was due from her as on the date of sale, namely the sum of Rs.80,856/- and future interest thereon calculated at the rate of 12% per annum from the date of sale till realisation. A Division Bench of this Court has in an unreported decision in W.A.No.182 of 2010 issued a similar direction. I accordingly dispose of the writ petition with the following directions. (a) The second respondent bank shall, within one week from the date of receipt of a certified copy of this judgment inform the petitioner in writing of the amount due from her as on 28.2.2011, computed with reference to the amount due from her W.P(C) NO.25485/2010 -:7:- as on 23.3.2001 (Rs.80,856/-) and the interest thereon at the rate of 12% per annum. (b) The petitioner shall deposit the said amount, either in lump or in instalments, on or before 30th June 2011. (c) Upon such payment being made, the bank shall re- convey the property to the petitioner. The petitioner shall meet the expenses, if any, required for the said purpose, namely the stamp duty, if any, payable on the instrument and the registration and other charges. (d) If the petitioner fails to make the payment on or before 30th June, 2011 this direction shall stand recalled and the writ petition shall stand dismissed. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.25485 of 2010 ---------------------------- JUDGMENT 24th February, 2011