IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 WP(C).No. 17093 of 2007(I) -------------------------------------- PETITIONERS: --------------------- 1. K.M. SIDDIQUE, KUNNEKUDIYIL VEEDU, MANIKINAR P.O., NELLIMATTOM-686 693. 2. K.P. MOIDEEN, KUNNEKUDIYIL VEEDU, MANIKINAR P.O., NELLIMATTOM-686 693. 3. SHAMEENA SIDDIQUE, KUNNEKUDIYIL VEEDU, MANIKINAR P.O., NELLIMATTOM-686 693. 4. ABDUL AZEEZ, KUNNEKUKDIYIL VEEDU, MANIKINAR P.O., NELLIMATTOM-686 693. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS: -------------------------- 1. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTHAMANGALAM. 2. SENIOR INSPECTOR OF CO-OPERATIVE SOCIETIES & ARBITRATOR & SALE OFFICER TO KAVALANGAD SERVICE CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE (GENERAL), KOTHAMANGALAM. 3. KAVALANGAD SERVICE CO-OPERATIVE SOCIETY LTD.NO.1348, NELLIMATTOM P.O., KOTHAMANGALAM REPRESENTED BY ITS SECRETARY. 4. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ERNAKULAM. 5. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. ADV. SRI.K.K.CHANDRAN PILLAI FOR R3 SRI.A.S.SAJUSH PAUL FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17093 of 2007(I) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1: TRUE PHOTOCOPY OF NOTICE DATED 23/04/2005 IN EXECUTION PETITION ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF 3RD PETITIONER. EXHIBIT P2: TRUE PHOTOCOPY OF INTIMATION DATED 15/07/2005 ISSUED BY THE 2ND RESPONDENT IN FAVOUR OF 1ST PETITIONER. EXHIBIT P3: TRUE PHOTOCOPY OF CIRCULAR NO.9/2006 DATED 27/02/2006 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P4: TRUE PHOTOCOPY OF THE JUDGMENT IN WPC NO.13668/2006 DATED 12/09/2006 OF THIS HON'BLE COURT. EXHIBIT P5: TURE PHOTOCOPY OF THE COMMUNICATION DATED 30/10/2006 ISSUED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT. EXHIBIT P6: TRUE PHOTOCOPY OF THE COMMUNICATION DATED 21/11/2006 ISSUED BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT. EXHIBITP7: TRUE PHOTOCOPY OF THE COMMUNICATION DATED 11/12/2006 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P8: TRUE COPY OF THE ORDER DATED 30/1/2007 OF THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS: EXHIBIT R3(a): TRUE COPY OF LETTER DATED FROM THE 3RD RESPONDENT TO THE PETITIONERS. EXHIBIT R3(b): TRUE COPY OF WRIT PETITION WPC NO.13668/2006 WITH ALL DOCUMENTS FILED BEFORE THIS HON'BLE COURT. /TRUE COPY/ P.A. TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P.(C) No. 17093 of 2007 ................................................. Dated this the 30th day of June, 2009 J U D G M E N T Petitioners availed of a loan from the 3rd respondent society by mortgaging 1.20 acres of land belonging to the 1st petitioner as security for due repayment of the loan amounts. Petitioners defaulted repayment of the loan amounts. The society initiated proceedings for recovery. Arbitration case was filed which was decreed. The bank took out execution proceedings, the Sale Officer sold the mortgaged property. Although there were bidders who deposited earnest money, they refused to participate in the auction. Therefore the bank themselves bid the property in auction, which was confirmed in their favour for an amount of Rs.5,82,120/-. Thereafter, the petitioner claimed benefits of Ext.P3 circular issued by the Registrar of Co-operative societies, by which the Co-operative societies in Kerala were directed to offer One Time Settlement facility to borrowers of loan amounts. Petitioners claimed the same but was not granted. The petitioner approached this court by filing W.P.(C) No. 17093 of 2007 -2- W.P.(C) No. 13668 of 2006. Before this court, the petitioner submitted that they are willing to repay the entire loan amount with interest and other expenses incurred by the bank in which case the property may be re-conveyed to the 1st petitioner. This court by Ext.P4 judgment granted the petitioners six months time to pay off the entire amounts and on payment of the said amount, the bank was directed to re-convey the property to the 1st petitioner. Till the period of six months was over, the bank was directed not to alienate the property to third parties. Thereafter, the petitioner approached the Registrar of the Co- operative societies, who directed the Joint Registrar of Co- operative societies, Ernakulam to direct the 3rd respondent society to give the petitioner the benefit of One Time Settlement Scheme. Pursuant thereto, by Ext.P6 order, the Joint Registrar of Co-operative societies, Ernakulam directed to Assistant Registrar, Kothamangalam to take appropriate steps in that regard. By Ext.P7, the Assistant Registrar directed the 3rd respondent society to permit the petitioner to pay off the loan amounts under the One Time Settlement Scheme. Subsequently, the matter came up before the Joint Registrar again and the Joint W.P.(C) No. 17093 of 2007 -3- Registrar, after hearing both sides, by Ext.P8 order, held that the petitioner is not entitled to the benefits of OTS. It is under the above circumstances, the petitioners have filed this writ petition seeking the following reliefs: “i) issue a writ of certiorari or other appropriate writ, order or direction, call for the records leading to Exts.P2 and P8 and quash the same; ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to permit the petitioners to settle the liability as per Ext.P7 direction issued by the 1st respondent on the basis of the directions issued by the Hon'ble Minister for Co-operation, the 5th and 4th respondents; iii) declare the petitioners are entitled to the benefits of Ext.P3 circular; 2. A counter affidavit has been filed by the 3rd respondent, Bank disputing the contentions of the petitioner. According to the Bank, the petitioner was granted all opportunities to pay off the amounts due. They have detailed their action in respect thereof in their counter affidavit. They also relies on Ext.R3(a) letter issued to the petitioner on the basis of the Ext.P4 judgment of this court directing the petitioner to pay off the amounts as directed in that judgment, which also the petitioner did not avail of. The 3rd respondent therefore submits that the petitioners are not entitled to any further indulgence in the matter. W.P.(C) No. 17093 of 2007 -4- 3. I have considered the rival contentions in detail. 4. I am of opinion that it is too late in the day for the petitioner to seek benefits under the One Time Settlement Scheme. One Time Settlement Scheme is available only in respect of a defaulted loan account which has not been closed. In this case, the bank has proceeded for recovery of the loan amount, obtained an award from the arbitrator, brought the mortgage property to public sale, the bank themselves purchased the same and closed the loan account on that basis. Thereafter, there is no question of consideration of the petitioners' claim for one time settlement. In any event, after suffering Ext.P4 judgment, the petitioner cannot now claim any benefits other than what has been granted in Ext.P4 judgment. Before this court the petitioners themselves submitted that they are willing to pay the entire loan amount with interest and other expenses incurred by the bank as a condition for re-conveyance of the property. The bank was willing to re-convey the property also after receiving the entire amounts due. They have intimated the petitioner so, as per Ext.R3(a). Admittedly the petitioners have not availed of the same. Thereafter, it is not open to the W.P.(C) No. 17093 of 2007 -5- petitioners to again turn around and say that the petitioners are entitled to benefits of the One Time Settlement Scheme. That being so, I do not find any merit in the contentions raised by the petitioners and accordingly the writ petition is dismissed. S. SIRI JAGAN, JUDGE rhs