IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 10771 of 2008 Between: 1 A. suryachandra Rao S/o Krishna Murthy R/o Narsapur, West Godavari District. 2 B.H.Venkata Naresh Babu S/o Suryanarayana R/o Narsapur, West Godavari District. 3 B.H. Sarojini W/o Suryanarayana R/o Narsapur, West Godavari District. 4 B.H. Suresh babu S/o Suryanarayana R/o Narsapur, West Godavari District. ..... PETITIONER(S) AND 1 The Deputy Registrar of Cooperative Societies, Bhimavaram, West Godavari District. 2 The palakol Cooperative Urban Bank Ltd., Palakol, West Godavari District rep by its Secretary. 3 The Assistant Registrar/Sale Officer, the Bhimavaram Cooperative Urban Bank's Group, Headquarters at Narsapur, West Godavari district. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus or any othr appropriate Writ, order or direction declaring the notice in Form No.9 dt 10-04-2008 issued by the 1st respondent as illegal, arbitrary, violative of Principles of natural justice and constrary to the provisions of the A.P. Cooperative Societies Act and Consequently to set a side the same and pass such other order or orders. Counsel for the Petitioner:MR.K.CHIDAMBARAM Counsel for the Respondent No.: GP FOR COOPERATION THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 10771 of 2008 ORDER: Petitioners, four in number, seek a mandamus from this Court to declare the notice in Form–9 dated 10-04-2008 issued by the first respondent as arbitrary, illegal and contrary to the provisions of the A.P.Cooperative Societies Act, 1964. Petitioners are admittedly borrowers having taken a loan of Rs.15.00 lakhs from the second respondent-bank on 12-02-2004. They claim to have paid Rs.6.00 lakhs and to have abstained from making any payments thereafter for reasons of financial constraints. Their claim for a one-time settlement was of no avail. While matters stood thus, the first respondent issued a notice in Form-9 under Rule 52(ii)(e) of the A.P.Cooperative Societies Act, 1964 (for short ‘the Act’) to sell away the property, which was mortgaged by the petitioners with the second respondent-bank, and fixed the date of auction as 16-05-2008. Petitioners would contend that the impugned notice is illegal and contrary to the provisions of the Act, that, as per Section 71 of the said Act, the second respondent-bank had to obtain a certificate for recovery of the loan amount from the Registrar, that the Registrar was required to conduct an enquiry, by giving an opportunity to the loanee, before issuing the certificate and that the second respondent-bank had not approached the Registrar for a certificate in this regard. Sri K.Chidambaram, learned counsel for the petitioners, would submit that failure on the part of the respondents to comply with the statutory requirement, under Section 71 of the Act, vitiated the impugned proceedings and that the said order was liable to be quashed. On 14-05-2008 this Court, while granting interim stay of all further proceedings, including sale of the property in dispute, made it clear that the said order shall be subject to the petitioners depositing 50% of the outstanding amount within a period of four weeks from the date of the order. This Court also held that, in default, the interim order stood automatically vacated. The period of four weeks expired on 11-06-2008. Admittedly not even a part of the amount directed to be paid by this Court was paid. WPMP.No.15849 of 2008 was filed on 11-06-2008 seeking two months time to deposit the said amount. This two months period also expired on 11-08-2008. On a query from the Court, Sri K.Chidambaram, learned counsel for the petitioners, would state that the petitioners had not paid any amount, pursuant to the interim order of this Court dated 14-05- 2008, till date. Let alone payment of interest due, the petitioners have not even repaid the principal amount, admittedly due by them, in its entirety. In the affidavit filed in support of the writ petition, the petitioners have admitted that they had borrowed Rs.15.00 lakhs, of which nearly Rs.6.00 lakhs had been repaid. Even assuming that the petitioners had, indeed, repaid Rs.6.00 lakhs as claimed by them, still a sum of Rs.9.00 lakhs was due towards the principal, let alone the interest. Would this Court be justified in showing indulgence to those who have, admittedly, violated the law? It is well to remember that exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and a Writ is not issued as of right or as a matter of course. (C.R.Reddy Law College Employees’ Association, Eluru W.G.District vs. Bar Council of India, New Delhi[1]). As the power exercised by this Court, under Article 226 of the Constitution of India, is discretionary it need not be exercised in every case where there is an error of law. One of the limitations imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would not allow itself to be turned into a court of appeal to set right mere errors of law which do not occasion injustice. (Sangram Singh v. Election Tribunal, Kotah[2]). Even when some defect is found in the decision making process, this Court will exercise its discretionary power, under Article 226 of the Constitution of India, with great caution and only in furtherance of public interest and not merely on the making out of a legal point. This Court is required to keep larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interest requires interference, would it intervene in the matter. (Air India limited v. Cochin International Airport Limited[3]). Defaulters, such as the petitioners, who have failed to repay even the principal amount due, ought not to be afforded protection by this Court on mere technicalities or for an alleged technical violation. The petitioners, having admitted that more than Rs.9.00 lakhs is yet to be repaid by them towards the principal, cannot be heard to contend that they should be afforded protection from repayment thereof. Further, despite a default clause therein, the petitioners have not even complied with the interim order of this Court dated 14-05-2008, which required them to repay 50% of the amount due by 11-06-2008. They have not even deposited 50% of the amount within the two months period they sought for in WPMP.No.15849 of 2008. I see no reason, therefore, to show any indulgence in the petitioners’ favour since it is evident, even from the affidavit filed in support of the writ petition, that they are still due a sum exceeding Rs.9.00 lakhs towards the principal, let alone repayment of the interest component of the loan. In view of the admission in the affidavit filed in support of the writ petition that about Rs.9.00 lakhs is still to be repaid towards the principal, there is no need to invite a counter affidavit from the respondents to ascertain the exact amount due. The admitted factual position do not justify exercise of discretion under Article 226 of the Constitution of India. The writ petition is, accordingly, dismissed. However, in the circumstances, without costs. RAMESH RANGANATHAN,J Dt:01-12-2008 usd [1] 2004(5) ALD 180 (DB) [2] AIR 1955 SC 425 [3] 2000(2)SCC 617