IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 19141 of 2008(D) -------------------------------------- PETITIONER: ------------------- NAINA SURESH, W/O.SURESH KUMAR, CHANASSERY HOUSE, PAZHUVIL WEST P.O, THRISSUR. BY ADVS. SRI.P.SANTHOSH PODUVAL, SMT.R.RAJITHA. RESPONDENTS: ----------------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THRISSUR. 2. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, (ARBITRATOR CUM SPECIAL SALE OFFICER), THRISSUR DISTRICT CO-OPERATIVE BANK LTD, SAHAKARANA SHADABDI NILAYAM, TUDA ROAD, THRISSUR. 3. MANAGER, THE THRISSUR DISTRICT CO-OPERATIVE BANK LTD, TRIPRAYAR BRANCH. 4. PRASANNAN, S/O.NARAYANAN, KARAITTUPARAMBIL HOUSE, PAZHUVIL WEST P.O, THRISSUR. 5. LAKSHMI, W/O.NARAYANAN, KARIATTUPARAMBIL HOUSE, PAZHUVIL WEST P.O, THRISSUR. 6. GEETHA, W/O.PRASANNAN, KARIATTUPARAMBIL HOUSE, PAZHUVIL WEST P.O, THRISSUR. R3 BY ADVS. SRI.V.G.ARUN,SC,THRISSUR DIST.CO-OP BANK, SRI.T.R.HARIKUMAR, SRI.P.C.SASIDHARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19141/2008-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. AEL 2739/01 OF THE R.1. DTD. 15/05/03. EXT.P.2: COPY OF THE SALE NOTICE DTD. 09/05/2008 PUBLISHED BY THE R.2. EXT.P.3: COPY OF THE ENCUMBRANCE CERTIFICATE PERTAINING TO THE PROPERTY BROUGHT FOR SALE AS PER EXT.P.2. FOR THE PERIOD FROM 01/01/96 TO 10/06/2008. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.2. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE PETITION SUBMITTED BEFORE THE BANK BY THE PETITIONER DTD. 12/12/2002. EXT.R3.B: COPY OF THE PROCEEDINGS OF THE ASSISTANT REGISTRAR DT. 01/07/2003. EXT.R3.C: COPY OF THE APPLICATION SUBMITTED BY PETITIONER TO THE BANK ON 27/06/2003. EXT.R3.D: COPY OF THE RECEIPT ISSUED BY THE PETITIONER TO THE BANK. EXT.R3.E: COPY OF THE JUDGMENT IN O.S. 2137/03 DT. 28/06/2007. EXT.R3.F: COPY OF THE ORDER IN O.S. 863/99 DTD. 30/07/2005. EXT.R3.G: COPY OF THE ORDER FROM MUNSIFF COURT, THRISSUR. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.19141 of 2008-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of January, 2009. JUDGMENT 1.Respondents 4 to 6 availed a facility from the third respondent co-operative bank. They defaulted in repayment. That led to an arbitration proceedings and sale of the mortgaged property. The petitioner purchased that item in auction conducted by the second respondent on 5-4-2001. It appears that when the matter went up to to the Joint Registrar for confirmation, it was noticed that there were court attachments on that property. The first respondent, in his wisdom, refused to confirm that sale and directed the bank to return the amount paid by the petitioner with interest. That order was on 15-5-2003. Ext.R3(a) shows that the petitioner made a request on 12-12-2002 for return of the amount paid by her since sale was not being WP(C)19141/2008 -: 2 :- confirmed. Following that, the amount was received by the petitioner on 10-7-2003 as is evidenced by Ext.R3(c). While matters stood so, the creditor bank brought the property again to sale and published Ext.P2 notice dated 9-5-2008. This writ petition was, then, filed on the ground that such sale should not be permitted to take place. Though the petitioner had pleaded in the writ petition that the purchase money was returned to her pursuant to Ext.P1 order, it needs to be noticed that she had received that amount way back in July 2003 and while instituting this writ petition on 24-6-2008, it was, obviously, too late in the day for the petitioner to agitate on the sustainability and legality of Ext.P1 order issued by the Joint Registrar on 15-5-2003 setting aside the sale conducted on 5-4-2001. The transaction, as afore-noticed, does not result in any privity between the petitioner and the creditor bank. The petitioner is only an auction purchaser, which auction was not confirmed. WP(C)19141/2008 -: 3 :- 2.Later, holding out an agreement for sale in her favour, the petitioner sued respondents 4 to 6 and the creditor bank for an injunction from being dispossessed. That suit also found its waterloo on grounds referable to the provisions of law. 3.At this belated point of time, all that the petitioner could aspire is to request the bank to permit her to purchase the property for the total outstandings that may be due from respondents 4, 5 and 6. Even that may require the consent of respondents 4 to 6 because they would be entitled to contend that the value of the property, as of now, may be much higher than the amount due to the creditor bank and in such event, any differential should flow in favour of respondents 4 to 6. But the notice taken out in this writ petition to respondents 4 to 6 have been returned by stating that there are no such persons in the address shown in the writ petition. WP(C)19141/2008 -: 4 :- In the aforesaid context, I do not think it worthwhile to continue the interim order or to issue any direction in favour of the petitioner. The writ petition fails. The same is dismissed, subject of course to the right of the petitioner to participate in the auction and also to persuade the bank to come to an amicable settlement, if possible. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/240109