IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 18148 of 2009(K) -------------------------- PETITIONER(S): --------------- 1. MINI JACOB, W/O.LATE JOSE JACOB, KOLLIYIL HOUSE, NADUVIL P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. 2. ANNAKKUTTY, W/O.LATE CHACKO, KOLLIYIL HOUSE, NADUVIL P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.C.A.JOSEPH RESPONDENT(S): --------------- 1. THE FEDERAL BANK LTD., REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, CALICUT DISTRICT. 2. THE BRANCH MANAGER, FEDERAL BANK LTD., CHEMPERI BRANCH, CHEMPERI P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. ADV. SRI.A.ANTONY FOR R1&2 SMT.LEELAMMA ANTONY FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ---------------------------------------- W.P.(C).No.18148 of 2009 ---------------------------------------- Dated this the 28th day of July, 2009. JUDGMENT The first petitioner is the wife of one Jose Joseph, who died in an accident. According to the petitioner, Jose Joseph, along with the petitioner, jointly took an agricultural loan from the respondent bank. The petitioners aver that the the petitioners and late Joseph took Agricultural loan of Rs.75,000/- as per loan account No.Acc-27 on 12.3.1999 and Rs.75,000/- as per loan account No.Acc-44 on 1.9.2000. The 1st petitioner and her husband had taken agricultural loan of Rs.30,000/- as per loan account No.AMTL-204 on 12.3.1999 and Rs.30,000/- as per loan account No.AMTL-208 on 12.3.1999 and Rs.30,000/- as per loan account No.AMTL-215 on 17.3.1999. The total amount of Agricultural loans availed by the petitioners aggregates Rs.2,40,000/-. 2. The repayment of the loans were defaulted and the bank initiated steps for recovery of W.P.(C).No.18148 of 2009 :: 2 :: the same. A suit was filed by the bank for recovery of the defaulted loan amount and the same was decreed on 30.6.2006 for an amount of Rs.8,65,200/- with interest at the rate of 13% per annum with quarterly rests from 28.7.2004 and cost. While the decree was put in execution, the petitioners raised a plea for waiver under the Agricultural Debt Waiver and Debt Relief Scheme, 2008. The bank considered the plea and as per Ext.P2 allowed waiver wherever it was eligible and directed the balance to be paid. The order of the bank Ext.P2 is challenged in this writ petition. 3. The petitioners pray for a direction to the respondents to waive the entire loan amount of items, 3, 4, 5, 6 and 7 of Ext.P2. The said items in Ext.P2 relate to the loan availed by late Jose Joseph along with the first petitioner, his wife and in some cases, along with his mother and wife also. The contention of the petitioners in this case is that W.P.(C).No.18148 of 2009 :: 3 :: though the total extent of the property held by Jose Joseph jointly along with his wife and mother, was more than 5 hectares, the plea for waiver will have to be considered, by dividing the total extent of property amongst the applicants. Reliance is placed on the decision of this court in W.P.(C)No.1884/09. This court, in the said judgment, dealt with a case where the petitioners therein had availed a loan of Rs.1,17,000/- and the total extent of land held by both the applicants jointly was in excess of 2 hectares. The loanees therein claimed that they are entitled to be classified as 'small farmers' entitled to full waiver. The bank resisted their contention on Explanation No.1 to Clause 3.7 of the scheme which reads as follows: “The classification of eligible farmers as per the above landholding criteria under the Scheme, would be based on the total extent of land owned by the farmer either singly or as joint holder (in the case of an owner-farmer) or the total extent of land cultivated by the farmer (as tenant or share W.P.(C).No.18148 of 2009 :: 4 :: cropper) at the time of sanction of the loan, irrespective of any subsequent changes in ownership or possession.” 4. It was contended that the 1st petitioner is a joint holder along with the second petitioner and the total extent of land is in excess of 2 hectares and therefore, the benefit which they were eligible was waiver of 25%. This court rejected the said contention raised by the bank and held that if a person holds 6 acres of land along with another and if that person applies for the benefit, then joint owners' right in the joint holding alone can be reckoned as the applicants' land. Accordingly, the bank was directed to reconsider the case for the benefit of the petitioners therein. 5. The stand taken by the bank in the present case is that Jose Joseph and the second petitioner had produced documents to show that they are owners in possession of 6 acres of land Ext.R2(a) certificate also evidences the same. It is on the said W.P.(C).No.18148 of 2009 :: 5 :: basis that the loan was sanctioned. Insofar as the first petitioner is concerned, she has been considered both as legal heir of Jose Joseph and as an individual applicant. The bank had sanctioned a loan, taking note of the total extent stated in the application. The bank would have sanctioned the loan even in favour of one person and in doing so, the right, title and extent in the possession of the applicant would have been taken into account. This is not a case where there is a joint holding by two persons, where each individual applicant would hold separate extents of land. This court in W.P.(C)No.1884/09 seems to have considered the case of an applicant for a loan, who holds property both as an individual and as a joint holder and in such case, this court held that where the joint holding was the basis for the purpose of sanctioning loan, the individual right in the joint holding should not have been taken into account. W.P.(C).No.18148 of 2009 :: 6 :: 6. In the present case, if there are co- owners of 6 acres of land, each of the co-owner is entitled to have right over the entirety of the land. If there are two persons who are co-owners of 6 acres of property, the total extent of holding held by them will have to be treated as 6 acres. Each one of them would inter alia be entitled to assert right over the entirety, until there is a partition by metes and bounds. In such circumstances, I do not find any reason to interfere with the stand taken by the bank. The writ petition is accordingly dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge