IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 WP(C).No. 8489 of 2006(I) ----------------------------------- PETITIONER(S): -------------------------- SONY JOSEPH, S/O. K.J. JOSEPH, PADINJAREKALLOLIL, ELAKKAD P.O., KOTTAYAM. BY ADV. SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------------- 1. KERALA KHADI AND VILLAGE INDUSTRIES BOARD, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 2. SKYLARK RUBBER VILLAGE INDUSTRIES CO-OPERATIVE SOCIETY LTD.NO.K.2133, MANNAKKANAD, KOTTAYAM, REPRESENTED BY ITS ADMINISTRATOR. 3. THE DEPUTY TAHSILDAR (R.R.) PALAI. 4. THE VILLAGE OFFICER, ELAKKAD VILLAGE. R1 BY ADV. SRI.K.P.HARISH (SC) R.3,4 BY GOVERNMENT PLEADER SRI.M.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8489 of 2006(I) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: TRUE COPY OF THE DEMAND NOTICE-B10-48044/05 DATED 28.11.2005 DATED 14.12.2005. EXT.P2: TRUE COPY OF THE ATTACHMENT NOTICE-B10-48044/05 DATED 28.11.2005 ISSUED ON 14.12.2005. RESPONDENT'S EXHIBITS:- EXT.R1(a): TRUE PHOTOCOPY OF HYPOTHECATION DEED DATED 23.6.1993. EXT.R1(b): TRUE COPY OF THE BOND FOR LOAN DATED 23.06.1993. EXT.R1(c): TRUE COPY OF THE MEMORANDUM REGARDING MORTGAGE BY DEPOSITING OF TITLE DEEDS DATED 23.06.1993. EXT.R1(d): THE TRUE COPIES OF THE TITLE DEED, LEGAL OPINION. EXT.R1(e): A TRUE COPY OF THE COMMUNICATION DATED 04.07.2000. EXT.R1(f): TRUE COPY OF THE JUDGMENT IN W.A.NO.1437 OF 2007 DATED 21.06.2007. //TRUE COPY// P.A TO JUDGE P.R.RAMACHANDRA MENON, J. --------------------------------------------- W.P.(C). NO.8489 OF 2006 ---------------------------------------------- Dated this the 2nd day of September, 2011. JUDGMENT Issue involved is with regard to the sustainability of the RR steps taken against the petitioner in respect of the liability of the second respondent Society in connection with the loan procured from the first respondent. 2. The petitioner was a member of the second respondent Society. He was its President during the period 1998 to 2001. The Society wanted to have some financial assistance in connection with the Rubber-band manufacturing unit and accordingly, obtained a loan of Rs 1,70,000/- from the first respondent. The loan was availed by the Society creating a mortgage in favour of the first respondent, in respect of 4.5 Ares of land belonging to the Society. The loan amount could not be W.P.(C). NO.8489 OF 2006 2 repaid on time as assured and the Society has also became defunct; pursuant to which an Administrator was appointed, who took over the charge. While so, pursuant to the said steps taken by second respondent, the revenue authorities issued Exts.P1 and P2 proceedings against the petitioner and his properties; which made him to approach this Court by filing this writ petition. 3. When the matter come up for consideration before this Court on 22.3.2006, personal action against the petitioner was intercepted and the said interim order was extended from time to time. Subsequently, as per the interim order dated 30.10.2007, this Court directed the respondents 1, 3, and 4 to proceed against the properties of the Society covered by Ext.R1(a) Deed of Hypothecation first, before proceeding personally against the petitioner. The first respondent has filed a counter W.P.(C). NO.8489 OF 2006 3 affidavit and an additional counter affidavit explaining the sequence of events and also producing copies of the relevant documents. The main contention of the petitioner in the writ petition is that the petitioner was in no way liable or responsible for the default, as his tenure as the President of the Society was already over and further that the loan was procured by the Society and not by the petitioner. It is also stated that the Society is having properties in its name and if at all any step is necessitated, it shall only be against the Society and not against the petitioner; more so, when there is no question of any personal guarantee. 4. The above contention is sought to be rebutted by the second respondent in their pleadings, stating that 'personal guarantee' was given by the petitioner and other members of the Board, as borne by Ext.R1(b) 'Bond' executed in this regard. It is also stated that W.P.(C). NO.8489 OF 2006 4 mortgage was created in respect of the property in question as per Exts.R1(c), and R1(d) title deed was deposited with the first respondent, creating security over the same. 5. After hearing both the sides, this Court find that the contention of the petitioner that no personal guarantee was executed by him is contrary to the actual facts and circumstances; particularly in view of the contents of the counter affidavit/additional counter affidavit and the documents in support of thereof. The said averments have not been chosen to be rebutted by filing any reply affidavit by the petitioner. However, taking note of the interim order already passed in this Court on 30.10.2007, this Court finds that the matter could be disposed of making the said interim order absolute, by proceeding against the property of the Society first. It is ordered accordingly. If for any W.P.(C). NO.8489 OF 2006 5 reason, the steps against the property of the Society do not turn to be fruitful enough to realise the dues payable to the first respondent, it is open to the respondents to proceed against the petitioner and others concerned, based on the personal guarantee given as aforesaid. The writ petition is disposed of. P.R.RAMACHANDRA MENON, JUDGE. mns