IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 31857 of 2008(P) -------------------------------- PETITIONER : ---------------------- T.SUJATHA, KAVITHALAYAM, 232, KALLAYAM, KALLAYAM (P.O), THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENTS : ----------------------- 1. THE KERALA FINANCIAL CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. THE CHIEF MANAGER, KERALA FINANCIAL CORPORATION, VELLAYAMBALAM, THIRUVANANTHAPURAM. 3. THE DISTRICT MANAGER, KERALA FINANCIAL CORPORATION, VELLAYAMBALAM, THIRUVANANTHAPURAM. 4. SALE OFFICER, KERALA FINANCIAL CORPORATION, DISTRICT OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM. 5. MUHAMMED BASHEER, THEN DEPUTY MANAGER (LEGAL) THAMBURU, CHELLIMANOOR (PO), ANAD VILLAGE, THIRUVANANTHAPURAM. 6. K.C.CHANDRAKUMAR, CHANDRODAYAM, T.C.5/2147, KOKKODE, KOWDIAR (PO) THIRUVANANTHAPURAM. ADV. SRI.L.MOHANAN - R6 SRI.R.S.KALKURA , SC, KFC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. --------------------------- W.P.(C) No.31857 of 2008 ------------------------------------ Dated this the 5th day of March, 2009 JUDGMENT Prayers in this writ petition are to quash Exhibit P5, sale deed executed by the first respondent in favour of the 6th respondent and Exhibit P10, communication issued by the second respondent to the petitioner, calling upon the petitioner to remit the balance amount that is due from her to the KFC. 2. Briefly stated, facts of the case are that Shri. L. Surendran, petitioner’s husband, had availed a loan of Rs.86,000/- from the first respondent Corporation. Exhibit R2(v) is the loan agreement entered into between the parties on 6/12/1995, wherein the petitioner has been described as a co- obligant. Loan was availed of and the collateral security offered was 10.875 cents of property comprised in Survey No. 488/22 of Karakulam Village of Thiruvananthapuram District. 3. Admittedly, default was committed in the matter of repayment and proceedings were initiated by the first respondent W.P.(C) No.31857 /2008 2 under Section 29 of the State Financial Corporation Act, 1951. Finally the mortgage property was sold for Rs.70,000/- to the 6th respondent and Exhibit P5 is the sale deed that was executed in his favour on 27/04/2004. Petitioner submits that the sale was without notice to her and also without publication of any notice. 4. It is stated that immediately on coming to know of the sale thus conducted, she filed Exhibit P3 request dated 10/02/2008 for obtaining information as provided under Right to Information Act, in response to which, the first respondent issued Exhibit P4 disclosing about the sale of the property to the 6th respondent. Subsequently, the petitioner approached the respondents for return of the property and by Exhibit P10, the request was declined and she was called upon to remit the balance amount due. It is in these circumstances, this writ petition has been filed praying to quash Exhibits P5 and P10 and to declare the proceedings under section 29 should not have been invoked against her property, she being only a surety and for directing the respondents to surrender vacant possession of the property to the petitioner. W.P.(C) No.31857 /2008 3 5. The main contention raised by the petitioner is that the KFC should not have sold the property invoking the proceedings under Section 29 of the KFC Act. Counsel placed reliance on the judgments reported in Karnataka State Financial Corporation Vs. Narasimahaiah[2008(2) KLT SN 10 case no.11] and Thomas Vs. KFC [2009(1) K.L.T 19]. It was also contended that the property is a very valuable one and the amount offered by the 6th respondent was insufficient to discharge the debt and therefore the sale ought to have been adjourned by the respondents. In support of the contention raised reliance was placed on the judgment of this Court in Varkey Vs. State of Kerala [2008(4) K.L.T 738]. Realising the fact that this sale having taken place way back in 2004 and the sale deed, Exhibit P5 was executed in 2004 April itself, the counsel for the petitioner sought to get over the delay in approaching this Court relying on the judgment of this Court in Commander P.V. Nair Vs. Union of India and other[1991(2) KLJ 588] contending that when injustice has been done, remedies should not be barred. He also contended that the petitioner had no notice at any time W.P.(C) No.31857 /2008 4 and that the address shown by the respondents in the notices allegedly issued was erroneous. 6. Counsel appearing for R1 to R4 justified the sale by taking recourse to Section 29 of SFC Act relying on the Full Bench Judgment of this Court in Ponnappan Vs. Kerala Financial Corporation [2007(3) KLT 68]. According to him, the petitioner is wrongly assuming herself to be only a surety, but was a co- obligant and therefore was jointly bound along with the borrower himself. He also referred to Section 126 of the Contract Act to contend that surety is one who guarantees the discharge of obligations by 3rd parties and according to him in view of fact that the petitioner is a co-obligant, she stands on an equal footing to that of the borrower himself. In so far the contention raised by counsel for the petitioner that she had no notice of the proceedings and that the address in the notices was incorrect, learned counsel for respondents 1 to 4 invited my attention to the address of petitioner as shown in Exhibit R1(v), the Loan Agreement and also to Exhibits R2(f) to R2(n) and contented that the petitioner was served several notices in the address W.P.(C) No.31857 /2008 5 given in the loan application. 7. In so far as the 6th respondent is concerned, the main contention raised was one of limitation. According to him, the permissible period of limitation is three years which has commenced from 27/04/2004, the date on which Exhibit P5 was executed and that so reckoned, the period has expired long ago. It is also contended that the petitioner had filed O.P. No. 1138/2007 before the Family Court Nedumangad on 23/10/2007 with a prayer to set aside Exhibit P5, sale deed. It is stated that, after counter affidavit filed by the 6th respondent, the said petition was withdrawn and was accordingly dismissed. According to him, the dismissal on withdrawal was without reserving liberty to initiate fresh proceedings and hence this writ petition is liable to be dismissed as not maintainable. 8. After hearing rival contentions raised, I am of the view that it is unnecessary to resolve several of the factual contentions that are raised by the petitioner. In my view, this writ petition is liable to be dismissed on the short ground that it is highly a belated and time barred proceedings. As already noted sale in W.P.(C) No.31857 /2008 6 question was held by KFC on 27/04/2004 and document was also executed. If period of limitation is counted from that date, admittedly at this stage, cause of action, if any, have become time barred. The only explanation that is offered by the petitioner to get over the plea of limitation is that she did not have notice of the proceedings that were initiated or concluded by the KFC. In paragraph 9 of the statement filed by the KFC, it is stated that on 29/01/2002, they issued notice under section 29 informing the petitioner and her husband that unless entire dues were paid within 15 days of receipt of notice, the property offered as security would be taken over under Section 29. It is stated that notice was served on the petitioner also and Annexure R2(f) is the acknowledgment duly signed by the petitioner’s husband. It is stated that thereafter a further recovery notice was issued informing the defaulters that steps for enforcement of security would be taken unless the debt is discharged on or before 5/06/2002. It is stated that notice was again received by the petitioner’s husband and Annexure R2(g) is the acknowledgment. It is stated that the notice issued to the W.P.(C) No.31857 /2008 7 petitioner was returned unclaimed and the returned cover is Annexure R2(h). It is stated that thereafter again Exhibit R2(i) was issued to the petitioner, requesting the petitioner to come forward with a proposal for closing the loan account. It is stated that in response to the notice, petitioner’s husband approached the respondents on 18/10/2002 with a proposal for settling the liability under One Time Settlement Scheme on or before 10/11/2002. Annexure R2(j) is the copy of this letter. It is stated that the petitioner or her husband did not comply with the commitment made in Annexure R2(j) and subsequently, her husband sought for time, offering to remit an amount of Rs.1,75,000/- by Exhibit R2(k) letter dated 27/11/2002. It is stated that again the petitioner’s husband sought further time by filing R2(l) letter dated 11/12/2002. 9. As none of the offers made were honored, notices were again issued and copies of these notices are Annexure R2 (m) and R2(n). It was subsequent to all these, that newspaper advertisements evidenced by R2(o) and R2(p) were published by the KFC, which ultimately resulted in sale in favour of the 6th W.P.(C) No.31857 /2008 8 respondent. 10. Evidently, the address shown in all these communications is the address furnished by the petitioner in the loan agreement itself. Petitioner has no case that she had shifted residence or that she had intimated any change of address to the KFC. In these circumstance, I have no reason to accept the unsubstantiated plea of the petitioner that she had no notice of the proceedings initiated and the sale conducted by the KFC in favour of the 6th respondent. In these circumstances, on the materials produced, I am not prepared to hold that the writ petition has been filed within the permissible period of limitation as provided under the Limitation Act. Therefore in my view, the cause of action leading this writ petition is time barred and the petition deserves to be dismissed for that reason itself. Writ petition fails and hence it is dismissed. ANTONY DOMINIC, JUDGE scm