IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 WP(C).No. 26906 of 2011(K) --------------------------------------- PETITIONER: ------------------- GEORGE KURIEN, S/O.KURIEN, AGED 52 YEARS, PUTHENAPRAKUNNEL HOUSE, PLASANAL P.O., ERATTUPETTA, PALA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN, SRI.M.D.SASIKUMARAN, SRI.GEORGE MATHEW, SRI.DIPU JAMES. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-01. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, GOVERNMNET SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL STATION, KOTTAYAM-686 002. 4. SPECIAL SALE OFFICER, KERALA STATE CO-OPERATIVE HOUSING FEDERATION, KALOOR, KOCHI-17. 5. MELUKAVU HOUSING CO-OPERATIVE SOCIETY LTD.,NO.K.671, MELUKAVU P.O., ERATTUPETTA, PALA, REPRESENTED BY ITS SECRETARY-686 652. 6. SECRETARY, MELUKAVU HOUSING CO-OPERATIVE SOCIETY LTD., NO.K-671, MELUKAVU P.O. ERATTUPETTA, PALA-686 652. R1 TO R3 BY GOVT. PLEADER SRI. G. GOPAKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.26906/2011-K: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1: TRUE COPY OF THE SALE PROCLAMATION DT.13/1/2010. EXHIBIT P2: TRUE COPY OF NOTICE DTD.25/2/2010. EXHIBIT P3: TRUE COPY OF ORDER NO.H.M/4544/10 DTD.25/8/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE Prv. P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.26906 of 2011 ----------------------------------------- Dated this the 22nd day of November, 2011 JUDGMENT The petitioner availed a loan from the 5th respondent Housing Co-operative Society about two decades back. When the loan was not repaid, the 5th respondent society filed A.R.C.No.167 of 1999 under section 69 of the Kerala Co-operative Societies Act before the Arbitrator. By award passed on 28.7.1999 the Arbitrator permitted the 5th respondent society to recover the sum of Rs.83,210/- with interest at 16.6% per annum from 2.6.1999 and costs. The award has attained finality. Even thereafter the petitioner did not repay the loan. The bank thereupon brought the security offered by the petitioner to sale by submitting an application for execution of the award before the Sale Officer. Ext.P1 sale proclamation was thereupon issued on 13.1.2010 proposing to sell the security in public auction on 25.2.2010. The petitioner did not even thereafter repay the loan. The sale was accordingly held on 25.2.2010 in which 15 cents of land offered by the petitioner as security was brought to sale, sold and purchased W.P(C).No.26906 of 2011 -:2:- by the 5th respondent society for the sum of Rs.2,37,275/-, the amount due as per the award as on the date of sale. The Sale Officer thereupon issued Ext.P2 notice dated 25.2.2010 informing the petitioner that unless the sum of Rs.2,37,275/- together with 5% of the said amount is deposited within 30 days, the sale will stand confirmed, a sale certificate will be issued and he will be dispossessed. 2. The petitioner thereupon filed an application dated 23.3.2010 before the Joint Registrar of Co-operative Societies (General) wherein he prayed that the sale may be set aside. In that application he raised various contentions including the contention that what was sold was not the property mortgaged. By Ext.P3 order passed on 25.8.2011 after notice to and hearing the petitioner, the Secretary of the 5th respondent society and the Sale Officer, the Joint Registrar of Co-operative Societies (General) rejected the application, but directed that in the event of the petitioner remitting the sum of Rs.2,37,275/- together with the sum of Rs.5858/- being the expenses incurred for conducting the sale on or before 15.10.2011, the sale will be set aside. He was also informed that if he commits default in remitting the said sum, the sale will stand confirmed. In this writ petition the W.P(C).No.26906 of 2011 -:3:- petitioner challenges Ext.P1 sale proclamation, Ext.P2 notice and Ext.P3 order and seeks a declaration that the sale held pursuant to Ext.P1 is irregular and is liable to be set aside. The material contention raised by the petitioner is that the property which was sold in public auction has not been properly identified, that what was sold was not the property offered as security to the 5th respondent bank, but property offered as security to another financial institution. In short, the contention raised in the writ petition is that there is no property as mentioned in the sale proclamation and what was sold was not the property offered by the petitioner as security. 3. I heard Sri.K.P.Unnikrishnan Eloor, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. A reading of Ext.P3 order, which is impugned in the writ petition, indicates that the award in the execution of which an item of immovable property belonging to the petitioner was sold, was passed years back on 2.6.1999. The award has attained finality. For the past 12 years the petitioner has not repaid any part of the loan. It was in such circumstances that in execution of the award an item of immovable property belonging to the petitioner was brought to W.P(C).No.26906 of 2011 -:4:- sale and sold in public auction. By Ext.P3 order dated 25.8.2011 the petitioner was informed that if he deposits the amount realised in the sale together with the sum of Rs.5858/- being the expenses incurred to conduct the sale, the sale will stand set aside and the loan account will be closed. The petitioner did not comply with the said order. Instead he filed an application to set aside the sale on the grounds of fraud and irregularity. The main contention raised in the application was that the property sold is not the property mortgaged. The Joint Registrar of Co-operative Societies overruled the said contention holding that though the western and northern boundaries were incorrectly described in the mortgage deed, the property is otherwise identifiable and what was sold is the property mortgaged by the petitioner. It is evident from the materials on record that the attempt of the petitioner is to delay and defeat the execution of the award which was passed on 2.6.1999. The petitioner has not, during the past 12 years, remitted any amount towards the decree debt. As on the date of sale the amount due was Rs.2,37,275/-. The Joint Registrar of Co- operative Societies, has by the order impugned permitted him to deposit the sum of Rs.2,37,275/- together with the sum of Rs.5858/- being the expenses incurred for conducting the sale. W.P(C).No.26906 of 2011 -:5:- Though more than one year and nine months have passed thereafter, the petitioner has not deposited the said amount. In my opinion, on the facts set out, the petitioner can have no reason to feel aggrieved by Ext.P3. Ext.P3 order passed by the Joint Registrar of Co-operative Societies directing the petitioner to deposit the amount realised in the sale and a further sum of Rs.5858/- to have the sale set aside, cannot be said to be in any way illegal or perverse. The writ petition is, in my opinion, an abuse of the process of the court and is liable to be dismissed on that short ground. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.26906 of 2011 ---------------------------- JUDGMENT 22nd November, 2011