IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WA.No. 1203 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.6482/2006 Dated 08/04/2009 .................... APPELLANT(S): PETITIONER ------------------------ KUNNUMMAL VASU, AGED 70 YEARS, S/O.KUNJONAKKAN, KALAPARAMBU HOUSE, KOLARI P.O., PARIYARAM, MATTANNUR (VIA), KANNUR DIST., PIN-670 702. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): RESPONDENT ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR. 3. TELLICHERRY AGRICULTURAL DEVELOPMENT BANK LTD.. NO.F.1030, REPRESENTED BY ITS SECRETARY TELLICHERRY, KANNUR DISTRICT. 4. SRI.P.I.GEORGE, THOMAS NIVAS, PANTHAKKAL, P.O.MAHE. BY GOVT.PLEADER SRI.BENJAMIN PAUL BY ADV.SRI.P.V.SURENDRANATH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ----------------------------------------- W.A.No.1203 of 2009 ----------------------------------------- Dated this the 19th day of June, 2009 JUDGMENT Kurian Joseph,J. This is an appeal filed by the petitioner in the W.P(C) No.6482/2006. The writ petition was filed praying for a direction to the second respondent Joint Registrar of Co-operative Societies to direct the 3rd respondent Bank to accept the amount due from the petitioner and release the property from attachment pursuant to Ext.P4. Ext.P4 is the judgment of this court in the case of the petitioner himself pertaining to the same transaction. Apparently what is intended is Ext.P3. Ext.P3 is a notice dated 9-12-1994 issued by the 3rd respondent Bank to the petitioner giving an opportunity to pay off the dues to the Bank before the confirmation of the sale. On that occasion the petitioner approached this court leading to Ext.P4 judgment in O.P.No.239/1995. The main contention taken by the writ petitioner on that occasion was that for realising the dues to the tune of around Rs.20,000/- at that time, it is not necessary to W.A.No.1203/2009 . -:2:- proceed against the entire extent of 50 cents. It is pertinent in this context to note that it is an agricultural land and the loan was availed for pine-apple cultivation and the sale is in the year 1994. However, it was noted by this court that the sale had already taken place and that the petitioner had not availed the opportunity offered by the Bank to remit the amount. When that original petition was pending before this court, this court also had granted an opportunity to pay off the dues. Even that was not complied with. In such circumstances it was made clear that it was not necessary to go into the merits of the case. The original petition was hence disposed of with a direction to the 5th respondent that in case any amounts have been collected in excess of the dues payable by the petitioner in the process of the sale, the same shall be returned with interest to the petitioner. It was also made clear in the judgment that “... the judgment will not stand in the way of the petitioner approaching the Bank along with the additional 6th respondent for otherwise settling the issue”. That judgment in O.P.No.239/1995 was delivered by one W.A.No.1203/2009 . -:3:- of us, (Kurian Joseph, J). Thus it is clear that the fate of the sale had become sealed by the said judgment. The only liberty granted to the writ petitioner was to approach the Bank along with the additional 6th respondent, the auction purchaser, for otherwise settling the issue. Thereafter only the petitioner filed W.P(C)No.6482/2006 praying for a direction to the Joint Registrar to direct the 3rd respondent Bank to accept the amounts due from the petitioner and release the property from attachment. The writ petition is nothing but an abuse of the process of this court. In spite of the above factual position, the learned single Judge, in tune with the mandate under Section 89 of the Code of Civil Procedure, called the parties and has taken lot of pains as can be seen from the proceedings to have a mediated and amicable settlement. It is fairly clear from the judgment itself that the auction purchaser, the 4th respondent herein, (the Addl. 6th respondent in O.P.No.239/1995) has been generous enough to concede for a settlement by surrendering 20 cents to the petitioner. But it is seen that the petitioner himself had W.A.No.1203/2009 . -:4:- negotiated for 25 cents instead of 20 cents and finally the learned single Judge persuaded the 4th respondent herein to agree for releasing 22 cents. Apparently the petitioner also was agreeable for the proposal and obviously he should be exuberantly happy with the suggestions since he was getting 22 cents for nothing. There was no legal obligation on the part of the 4th respondent or the Bank to go for any such settlement. Despite that, to purchase peace and in view of the mediation efforts taken by the learned single Judge, the parties have agreed for such settlement. 2. As rightly pointed out by the learned counsel appearing for the respondents in the background of the case as above, it is absolutely uncharitable, if not unfair, on the part of the writ petitioner to have pursued the matter in writ appeal. The conduct of the writ petitioner should have made him ineligible for the fruits of the mediation efforts taken by this court. However, reluctantly this court refrains from doing so. Having had no legal right to claim for the property after Ext.P4 judgment, the Bank W.A.No.1203/2009 . -:5:- and the auction purchaser have co-operated with the mediation efforts taken by the learned single Judge and with the agreement of all the parties including the writ petitioner, the settlement had been arrived at. No ground whatsoever is taken in the writ appeal as to whether such an agreement is vitiated by any permissible grounds. In the above circumstances we dismiss the writ appeal. Though exemplary costs should have been awarded, in view of the persuasive submission made by counsel for the appellant, having realised the entire background, for indulgence, we reluctantly refrain from imposing costs. (KURIAN JOSEPH, JUDGE) (P.R.RAMACHANDRA MENON, JUDGE) ahg. KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. --------------------------- W.A.No.1203 of 2009 ---------------------------- JUDGMENT 19th June, 2009