IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 15274 of 2009(D) ----------------------------------------- PETITIONER(S): ----------------------- SHIHABUDEEN, S/O. MUHAMMED MATHER, AGED 34 YEARS, BUSINESS,THOUFEEQ MANZIL, KUMMANAM KARA, CHENGALAM VILLAGE, KOTTAYAM DISTRICT. BY ADVS. MR.M.P.RAMNATH, MR.P.RAJESH(KOTTAKKAL). RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, KERALA FINANCIAL CORPORATION, KOTTAYAM. 3. THE KERALA FINANCIAL CORPORATION (KFC), (INCORPORATED UNDER THE STATE FINANCIAL CORPORATIONS ACT NO.LXIII OF 1951), GEETHA TRADE CENTRE, NEAR YWCA, KOTTAYAM - 686 001, REPRESENTED BY THE MANAGING DIRECTOR. 4. P.S. HAMZA, PALAPARAMBIL, THAZHATHANGADI P.O., KOTTAYAM. R1 BY GOVERNMENT PLEADER SMT. M.R.SREELATHA R2 & R3 BY ADV.MR.K.JAJU BABU,SC,KERALA FINANCIAL CORPN. R3 BY ADV.MR.JAMES KURIAN R4 BY ADV.MR.JEN.V.KURIAKOSE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.15274/2009 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF RECEIPT DTD. 17/03/2008 FOR RS.1,39,500/- ISSUED BY THE 3RD RESPONDENT TOTHE PETITIONER. P2: COPY OF THE MEDICAL CARD WITH PCC NO.316/05 ISSUED BY THE PEDIATRIC CARDIOLOGY CLINIC, INSTITUTE OF CHIHLD HEALTH, MEDICAL COLLEGE, KOTTAYAM, TO MOHAMMED AMIN (S/O.PETITIONER). P3: COPY OF THE REPRESENTATION DTD.22/04/2008 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR REVENUE. P4: COPY OF THE LETTER BEARING NO.25714/S1/08/RD DTD. 07/10/2008 FROM THE 1ST RESPONDENT TO THE PETITIONER. P5: COPY OF PROCEEDINGS BEARING NO.K-14/04 DTD.22/11/2008 OF THE 2ND RESPONDENT. P6: COPY OF THE FIRST APPLICATION DTD. 18/03/2009 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT. P7: COPY OF THE REPLY DTD. 26/03/2009 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT IN RESPONSE TO EXHIBIT P6. P8: COPY OF THE FURTHER APPLICATION DTD. 31/03/2009 SUBMITTED BY THE 4TH RESPONDENT TOTHE 3RD RESPONDENT. P9: COPY OF THE REPLY DTD. 6/04/2009 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT IN RESPONSE TO EXHIBIT P8. P10: COPY OF THE NEWSPAPER NOTICE PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 29/02/2008 OF THE TENDER NOTIFICATION ISSUED BY THE 2ND RESPONDENT DTD. 29/02/2008 FIXING THE AUCTION DATE AS 17/03/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ---------------------------------------- W.P.(C).No.15274 of 2009 ---------------------------------------- Dated this the 26th day of August, 2009. JUDGMENT The property, having an extent of 10.38 Ares, belonging to a defaulter with the Kerala Financial Corporation {for short 'the Corporation'} was brought to sale on 17.3.2008, pursuant to Ext.P10 auction notice issued by the Corporation. The bid made by the petitioner for an amount of Rs.9,30,000/- was confirmed and 15% of the bid, amounting to Rs.1,39,500/- was deposited by the petitioner on the same day, as evidenced by Ext.P2. Balance amount had to be deposited within 30 days from the date of auction i.e. 16.4.2009. The petitioner was restrained by factors beyond his control in effecting such payment. He submits that his 3½ year old child was suffering from down syndrome and was under treatment at Pediatric Cardiology Clinic, Institute of Child Health, Medical College, Kottayam. The child W.P.(C).No.15274 of 2009 :: 2 :: was referred for examination on 12.4.2008 for serious complications. The child was admitted for treatment and was discharged after a week. Thus, the petitioner could not effect payment before the last date i.e. 16.4.2008. But, on 21.4.2008 he offered to make payment. This was not accepted. Representations made by him did not elicit any response. In the meanwhile, the original defaulter settled the entire amount due to the Corporation. The petitioner then requested for refund of the amount of Rs.1,39,500/-. This has been denied as is evidenced by Exts.P4 and P5. The request for refund has been rejected on the ground that there is no provision for the same. Hence this writ petition. 2. A counter affidavit has been filed by the respondents. 3. It is pointed by the learned counsel for the petitioner that the notification does not complain to a clause for forfeiture of 15% of the amount, if there is W.P.(C).No.15274 of 2009 :: 3 :: delay in payment of the balance amount. It is further contended that at any rate, since the original defaulter had settled the account and the revenue recovery proceedings itself was withdrawn, there is no justification for forfeiture of the amount deposited by the petitioner. 4. I find force in the submission. As a matter of fact, neither the requisitioning authority, nor the State have suffered any loss on account of the delay on the part of the petitioner in remitting the balance 85% of the bid amount. The sale also could not have gone through since defaulted amount was remitted in full by the defaulter. It would be unjust on the part of the State, in such circumstances, to retain the amount deposited by the petitioner. 5. In the circumstances, Exts.P4 and P5 are set aside. The Government shall refund to the petitioner the amount of Rs.1,39,500/- within one month from the date of receipt of a copy of this W.P.(C).No.15274 of 2009 :: 4 :: judgment. If there is any delay in doing so, the amount shall carry interest at the rate of 9% from the expiry of the one month period. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//