IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 WP(C).No. 28561 of 2010(U) ---------------------- PETITIONER : -------------------- ROY THOMAS, S/O.LATE K.M.THOMAS, KARYATTU VEEDU, KOTHALA P.O., PAMPADY, KOTTAYAM DISTRICT. BY ADV. SRI.ALEXANDER GEORGE RESPONDENT(S): ------------------------ 1. PAMBADY HOUSING CO-OPERATIVE SOCIETY LTD., REPRESENTED BY ITS SECRETARY, K-371, PAMBADY P.O., KOTTAYAM DISTRICT, PIN 686 001. 2. SENIOR INSPECTOR OF CO-OPERATIVE SOCIETY, ARBITRATION CUM-SPECIAL SALE OFFICER, KERALA STATE HOUSING FEDERATION, KALOOR, ERNAKULAM, KOCHI – 17. PIN 682 031. 3. THE JOINT REGISTRAR, CO-OPERATIVE SOCIETY JOINT REGISTRAR (GENERAL), KOTTAYAM, PIN 686 001. R1 BY ADV. SRI.ROY CHACKO R3 BY GOVT. PLEADER SRI. M.A. ASIF THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2011, ALONG WITH WPC NO. 28572 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.N.RAVINDRAN, J. --------------------------- W.P.(C) Nos. 28561 & 28572 OF 2010 -------------------------- Dated this the 19th day of January, 2011 J U D G M E N T W.P.(C) No. 28561 of 2010 The petitioner's father late K.M.Thomas had availed a loan from the first respondent society for constructing a residential house way back in the year 1995. When he did not repay the loan and committed default, the bank filed arbitration case ARC No.116 of 1998. In that arbitration case, the Arbitrator passed an award dated 31.7.1998. Even thereafter, the petitioner's father did not take steps to repay the loan. The bank thereupon filed an execution petition on 8.9.1999. Though several notices were issued, the petitioner's father did not repay the loan. He passed away on 2.2.2007. Thereafter notices were issued to the petitioner, his legal heir. After repeated notices were issued to the petitioner, the security offered for the loan was brought to sale and sold on 29.7.2010 and it was purchased by the bank itself for the sum of Rs.67,446/-. After the sale was held, the sale officer issued Ext.P5 notice dated 29.7.2010 to the petitioner and his mother informing them that the sale will be set aside if they deposit the sum of Rs.60,818/- within 30 days and WPC Nos.28561 & 28572/2010 2 that in the event of failure to deposit the said sum, steps will be taken to evict them from the land. This writ petition was thereupon filed on 14.9.2010 challenging the sale notice which is marked as Exts.P4 and P5 letter. The main contention raised by the petitioner is that in view of Ext.P3 Government order dated 12.11.2009, he is entitled to waiver of the loan, as he is a scheduled caste converted to Christianity. The first respondent bank has filed a counter affidavit dated 24.11.2010 and a statement dated 17.12.2010. It is stated that as on 31.12.2010 the total amount due was Rs.58,067/- and that the bank is prepared to grant the petitioner an opportunity to pay the balance amount in monthly instalments of Rs.10,000/- each. W.P.(C) No. 28572 of 2010 2. The father of the petitioner herein had also likewise availed a loan from the first respondent bank. When he defaulted repayment of the loan, the bank filed ARC No.738 of 1998. In that case an award was passed. Even after the award, when the loan amount was not repaid the bank filed execution petition No,.31/99. Though several notices were issued, the petitioner's father did not repay the loan. The petitioner's father passed away on 30.8.2009. Thereafter notices were issued to the petitioner, his legal heir. After repeated WPC Nos.28561 & 28572/2010 3 notices were issued, the security offered for the loan was brought to sale and sold on 29.7.2010 and it was purchased by the bank itself for the sum of Rs.45,749/-. After the sale was held, the sale officer issued Ext.P5 notice dated 14.7.2010 to the petitioner informing that the sale will be set aside if he deposits the sum of Rs.43,036/- within 30 days and that in the event of failure to deposit the said sum, steps will be taken to evict the petitioner from the land. This writ petition was thereupon filed on 14.9.2010 challenging the sale notice which is marked as Exts.P4 and P5 letter. The main contention raised by the petitioner is that in view of Ext.P3 Government order dated 12.11.2009, he is entitled to waiver of the loan as he is a scheduled caste converted to Christianity. The first respondent bank has filed a counter affidavit dated 24.12.2010 and a statement dated 17.12.2010. It is stated that as on 31.12.2010 the total amount due was 51,128/- and that the bank is prepared to grant the petitioner an opportunity to pay the balance amount in monthly instalments of Rs.10,000/- each. The first respondent has in the counter affidavit also stated that Ext.P3 Government order has no application in the case of the petitioner for the reason that the period fixed for repayment of the loan expires only in the year 2010 and Ext.P3 WPC Nos.28561 & 28572/2010 4 Government order applies only to loans the repayment period of which expired on or before 31.3.2006. 3. I heard Sri.Alexander George, learned counsel appearing for the petitioners and Sri. Roy Chacko, learned counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. The sale of the security is challenged only on the ground that the petitioners are entitled to the benefit of Ext.P4 Government order dated 12.11.2009. Ext.P4 Government order applies only to loans, the repayment period of which expired on or before 31.3.2006. The repayment period for the loans availed by the predecessors-in-interest of the petitioners expired only in the year 2010. The petitioners are therefore not entitled to the benefit of loan waiver contemplated in Ext.P4 Government order dated 12.11.2009. The sale of the property on 29.7.2010 cannot therefore said to be illegal. Shortly after the sale was held , the sale officer informed the petitioners that the sale will be set aside if they deposit the amounts mentioned in Ext.P6 in W.P.(C) No.28572 of 2010 and Ext.P5 in W.P.(C) No.28561 of 2010. The petitioners did not deposit the said amount. Instead they moved this Court challenging the sale held on 29.7.2010. In view of the finding that the petitioners are not entitled WPC Nos.28561 & 28572/2010 5 to the benefits flowing from Ext.P4 Government order, the sale held on 29.7.2010 will necessarily have to be upheld. However, the bank has in the statement dated 17.12.2010 agreed that the petitioners can be permitted to pay the amount payable as on 31.12.2010 in instalments. Pursuant to the interim orders passed by this Court, the petitioner in W.P.(C) No. 28561 of 2010 has deposited the sum of Rs.20,000/- in two instalments and the petitioner in W.P.(C) No.28572 of 2010 has deposited Rs.10,000/-. In such circumstances, I am of the opinion that the petitioners should be permitted to pay the balance amount in instalments. I accordingly dispose of these writ petition with the following directions: (i) The first respondent bank shall inform the petitioners within two weeks from today of the amount payable by them to have the sale set aside, after giving credit to the payments made by them pursuant to the interim order passed by this Court. (ii) The petitioners shall pay the said amount in five equal monthly instalments commencing from 15.3.2011. The first instalment shall be made on or before 15.3.2011 and the remaining instalments shall be made on or before 15th of every succeeding English calender month. If the 15th of any month is a holiday, WPC Nos.28561 & 28572/2010 6 payment shall be made on the next working day. If the petitioners fail to remit the instalments in time, it will be open to the first respondent bank to confirm the sale. P.N.RAVINDRAN, (JUDGE) vps WPC Nos.28561 & 28572/2010 7 WPC Nos.28561 & 28572/2010 8