IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 21764 of 2011(U) --------------------------------------- PETITIONER: ------------------- SUKUMARAN, AGED 51, S/O.DAMODARAN, KALLEPPALLIL, PATHAMPUZHA.P.O., POOJAR THEKKEKARA, KOTTAYAM DISTRICT. BY ADV. SRI.S.RAJKUMAR. RESPONDENTS: ------------------------ 1. THE REGISTRAR, OFFICE OF CO-OPERATIVE SOCIETY REGISTRAR, THIRUVANANTHAPURAM - 695 001. 2. MEENACHIL EAST URBAN CO-OPERATIVE BANK, POONJAR THEKKEKARA, REPRESENTED BY ITS SECRETARY. PIN-686 582. 3. K.F.KURIAN, CHAIRMAN, MEENACHIL EAST URBAN CO-OPERATIVE BANK, POONJAR THEKKEKARA. 686 582. 4. SANTHOSH, AGED 38, S/O.JOSEPH, THOTATHIL, RAMAPURAM.P.O., PIN-686 576. 5. JOINT REGISTRAR, CO-OPERATIVE SOCIETY, KOTTAYAM DISTRICT - 686 001. R1 & R5 BY GOVT. PLEADER SRI. G. GOPAKUMAR, R2 BY ADVS. SRI.SHAJI THOMAS PORKKATTIL, SRI.N.NAGARESH, SRI.BINU PAUL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.21764/2011-U: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE SALE DEED NO.1054/2009 DTD. 20/07/2009 OF POONJAR S.R.O. EXT.P.2: COPY OF THE JUDGMENT DTD. 09/07/2007 IN W.P.(C).NO.15766/2007 OF THIS HON'BLE COURT. EXT.P.3: COPY OF THE LETTER DTD. 30/06/2006 SUBMITTED BY PETITIONER BEFORE THE GENERAL MANAGER, MEENACHIL EAST URBAN CO-OPERATIVE BANK, POONJAR THEKKEKARA. EXT.P.4: COPY OF THE LETTER DTD. 12/11/2007 SUBMITTED BY PETITIONER BEFORE R.3. EXT.P.5: COPY OF THE REPRESENTATION DTD. 11/07/201 SUBMITTED BY PETITIONER BEFORE R.5. EXT.P.6: COPY OF THE PETITION DTD. 29/06/2011 SUBMITTED BY PETITIONER BEFORE REVENUE DIVISIONAL OFFICER, PALA. RESPONDENT'S EXHIBITS:- EXT.R2.A: COPY OF THE JUDGMENT DTD. 29/11/2006 IN W.P.(C).NO.19033/2006 OF THIS HON'BLE COURT. EXT.R2.B: COPY OF THE ORDER DTD. 09/04/2007 IN R.P.NO.383/2007 IN W.P.(C). NO.19033/2006 OF THIS HON'BLE COURT. EXT.R2.C: COPY OF THE KAYCHIT FILED BEFORE THE MUNSIFF'S COURT, ERATTUPETTA DTD. 16/11/2007. //TRUE COPY// P.S. TO JUDGE Prv. P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.21764 of 2011 ----------------------------------------- Dated this the 24th day of November, 2011 JUDGMENT The petitioner availed a loan from the second respondent bank more than two decades back, to be exact on 24.1.1991. The loan was secured by a mortgage of one acre of land situate in re-survey No.224/3/1 of Poonjar Village, Meenachil Taluk, Kottayam District. It is stated that with an intention to grab the petitioner's property which was offered as security, the third respondent, the Chairman of the second respondent bank, sold the property in public auction and purchased the property in the name of the fourth respondent, his benamidar, that no notice was served on the petitioner, that the sale is void and illegal in view of the provisions contained in the Protection of Civil Rights Act, that though the petitioner is ready to pay the entire amount due to the bank, respondents 2 and 3 have not considered his request in view of their intention to grab the property for a nominal consideration. It is also stated that though this Court had by Ext.P2 judgment in W.P.(C)No.15766 of 2007 directed the second W.P(C).No.21764 of 2011 -:2:- respondent to take a humanitarian view and the petitioner had submitted Ext.P3 representation before the General Manager of the bank, Ext.P4 petition before the Chairman of the bank, Ext.P5 representation before the Joint Registrar of Co-operative Societies and Ext.P6 representation before the Revenue Divisional Officer, Pala, seeking redressal of his grievances, no action was taken to redress his grievances. It is contended that the sale of the petitioner's property as per Ext.P1 sale deed is illegal, without notice to him and is the outcome of an attempt made by the third respondent to grab the property. On these grounds the petitioner seeks the following reliefs:- i) Declare that attachment, auction and sale of petitioner's property by virtue of Ext.P1 is illegal, invalid and void. ii) Issue a writ of mandamus or such other appropriate writ or direction directing the respondents to permit the petitioner to make repayment of the amount due to the 2nd respondent bank. 2. The second respondent bank has filed a counter affidavit dated 22.8.2011. It is stated that when the petitioner failed to repay the loan, the bank filed ARC No.6863 of 1993, that an award was passed in that arbitration case on 23.8.1993, that in execution of the award the immovable property offered as security W.P(C).No.21764 of 2011 -:3:- by the petitioner was brought to sale and sold on 19.8.2004 and purchased by the second respondent bank itself, that the sale was confirmed by the Assistant Registrar of Co-operative Societies (General), Meenachil by the order passed on 27.7.2005, that thereafter a sale certificate was executed in favour of the second respondent bank and registered as document No.2442/2005 of the Sub Registrar's office, Poonjar, that the bank thereafter filed E.P.No.41 of 2005 in the Court of the Munsiff of Erattupetta for delivery of the property and that the property was delivered over to the bank on 16.11.2007. It is also stated that the petitioner had in the meanwhile filed W.P.(C)No.19033 of 2006 in this Court, that the said writ petition was disposed of by Ext.R2(a) judgment delivered on 29.11.2006 directing that the execution proceedings for delivery of the property shall be kept in abeyance for a period of three months taking note of the offer made by the petitioner that he is prepared to pay the entire amount due within a period of three months from 29.11.2006, that this Court had in the said judgment directed that if the petitioner fails to pay the amount due within three months, the bank will be free to proceed to obtain delivery of the property, that the petitioner did not take steps to remit the amount due from him, that instead he filed R.P.No.383 of 2007 seeking a review of Ext.R2(a) judgment, that W.P(C).No.21764 of 2011 -:4:- though no amount had been paid, in view of the request made by the learned counsel for the petitioner 15 days' time was granted by Ext.R1(b) order for the purpose of complying with the direction contained in paragraph 2 of Ext.R2(a) judgment, that even thereafter the petitioner did not deposit any amount, that instead he filed W.P.(C)No.15766 of 2007 in this Court, that the said writ petition was disposed of by Ext.P2 judgment holding that no grounds have been made out to interfere with the order passed by the Munsiff Court to deliver the property on 25.5.2007, that though after Ext.P2 judgment an Adalat was held in the office of the Joint Registrar of Co-operative Societies, Kottayam on 10.8.2007 and the bank was willing to settle the loan account by giving the petitioner all the benefits available to him under the one time settlement scheme then in force, the petitioner did not participate in the Adalat. It is also stated that though the award was passed on 23.8.1993 and delivery was obtained only after 14 years thereafter, the petitioner did not take steps to clear the loan account, that though the petitioner had filed an application before the Kerala State Farmer's Debt Relief Commission, Thiruvananthapuram (Application No.181077/08/KT) the application was closed by order dated 9.9.2009 in view of the fact that the petitioner was not present before the Commission. It is W.P(C).No.21764 of 2011 -:5:- also stated that the petitioner had more than 14 years time from the date of passing of the award till the property was delivered over to the second respondent bank in execution of the award in the year 2007, to repay the debt. As regards Ext.P1 it is stated that after possession of the property was delivered over to the second respondent bank, the Managing Committee of the bank decided to sell the property, that thereupon a public notice was issued in the Malayala Manorama daily dated 12.5.2008, that pursuant thereto, the property was sold by public auction and in that auction the fourth respondent purchased the property. It is stated that after the property was sold to the fourth respondent, Ext.P1 sale deed was executed, possession was delivered over to him and mutation was also effected in his favour and at present the fourth respondent is in possession of the property. The learned counsel appearing for the petitioner submitted that the fourth respondent has parted with the property, but the petitioner does not have the details regarding the sale. 3. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. Shorn of details, the main challenge in the writ petition is to Ext.P1 sale deed executed on behalf of the second respondent bank in favour W.P(C).No.21764 of 2011 -:6:- of the fourth respondent. From the averments in the counter affidavit filed on behalf of the second respondent and the recitals in Ext.P1 itself it is evident that Ext.P1 sale deed was executed, after the second respondent bank purchased the property in public auction in execution of an award passed in the year 1993, and the sale was confirmed, a sale certificate issued and possession was delivered over to the second respondent bank. The petitioner does not challenge the sale in favour of the second respondent bank or its confirmation. Such being the situation, as the owner of the property the second respondent bank was well within its rights to sell the property to any person. The petitioner has no case that before the property purchased by the second respondent bank was sold, it did not obtain the permission of the Joint Registrar of Co-operative Societies or that the general body has not approved it. It is evident from the recitals in Ext.P1 that the property was sold pursuant to a decision taken by the Managing Committee of the bank in terms of bye-law 35(XXVIII). Rule 180 of the Kerala Co-operative Societies Rules stipulates that no society shall do any act which is not expressly provided for by the bye-laws of such society without the previous express sanction of the Registrar for the same. The petitioner has not produced any material to show that the bye-laws of the bank do not W.P(C).No.21764 of 2011 -:7:- empower it to sell the properties acquired by it in execution of awards. In such circumstances I find no grounds to entertain the challenge to Ext.P1. In my opinion the petitioner, who did not repay the loan availed by him in the year 1991, notwithstanding the fact that an award was passed way back in the year 1993, cannot be heard to contend that the decree-holder purchaser who obtained the property in execution of the award was not entitled to sell it to the fourth respondent. Though the petitioner has vaguely alleged that the fourth respondent is a benamidar of the third respondent, no material is placed on record to establish the said contention. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.21764 of 2011 ---------------------------- JUDGMENT 24th November, 2011