IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 874 of 2009(D) ------------------------ PETITIONER(S): --------------- P.L.THOMAS, S/O.LUKA THOMAS, AGED 76 YEARS, PARAVARAKATH HOUSE, ELLAKKALLU PO,ADIMALI. BY ADV. SRI.PAUL MATHEW (PERUMPILLIL) SRI.P.V.SREENIJIN SMT.K.B.SONY SRI.PRASUN.S SRI.SANU.S.PANICKER SRI.K.T.BOSCO RESPONDENT(S): --------------- 1. THE BRANCH MANAGER KERALA STATE HOUSING BOARD KATTAPANA BRANCH,KATTAPPANA,IDUKKI DISTRICT. 2. THE ASSISTANT SECRETARY (RECOVER) KERALA STATE HOUSING BOARD TRIVANDRUM. ADV. SRI.A.JAYASANKAR, SC KSHB, TVM FOR R1 & 2 GOVERNMENT PLEADER MR.BEJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 874 OF 2009 D ```````````````````````````````````````````````````` Dated this the 27th day of February, 2009 J U D G M E N T Prayers in the writ petition are as follows. (i) To issue a writ, order or direction in the nature of Certiorari and quash Ext.P1 sale notice; (ii) To issue a writ, order or direction in the nature of mandamus directing the 1st respondent not to take any further action in view of Ext.P1 sale notice without complying Exts.P2 and P3 orders and the 2nd respondent respectively; (iii) To issue a writ, order or direction in the nature of mandamus commanding the 1st respondent to calculate the due amount of the petitioner after giving all benefits to him as per Ext.P2. 2. Case of the petitioner in brief is as follows. Petitioner availed a loan of Rs.3 lakhs from the 1st respondent in the year 1999. Ext.P2 is the order dated 20.8.2008 of the 2nd respondent granting benefit of One Time Settlement to all the borrowers of the housing loan. Petitioner had filed a writ petition which was disposed of by Ext.P3 judgment. Therein, this WPC.874/09 : 2 : court, referring to the OTS scheme and taking note of the submission of the petitioner that the petitioner is prepared to avail the benefit before 31.12.2008, disposed of the writ petition directing the sale will be adjourned by two weeks to avail the benefit of the OTS. But, Ext.P5 is issued dated 29.12.2008 noting that the total amount to be paid is Rs.11,78,438/- and the amount reduced as per the OTS scheme is Rs.4,52,090/- and the petitioner was called upon to pay Rs.7,26,348/-. Ext.P6 is a statement of accounts issued by the 1st respondent. The contention taken is that Ext.P3 order of this court should have been obeyed and Ext.P2 order also. 3. I heard learned counsel for the petitioner, learned counsel for the Board and learned Government Pleader. 4. Learned counsel for the petitioner points out that the correct amount which is payable by the petitioner is Rs.3,80,190.80. The calculation made by the petitioner is as follows. Principal amount Rs.3,00,000.00 Total admitted interest Rs.2,67,302.68 Only 30% of the total interest need to be remitted (ie., Rs.80,190/-) Rs. 80,190.80 Total liability = Rs.3,80,190.80 ============ WPC.874/09 : 3 : 5. According to the learned counsel for the petitioner, the petitioner has not been given the benefit of Ext.P2 order provided for OTS benefit. This is for the reason that it is stated that in respect of the middle income group to which the petitioner admittedly belongs, under Ext.P2, there is a complete reduction of penal interest and 70% abatement of default(aqS¡v) interest. Therefore, according to the calculation made by the petitioner, the petitioner is liable to pay Rs.3,80,190.80. 6. Per contra, learned counsel for the Board would point out that the calculation made by the petitioner is totally incorrect and the petitioner has been given the benefit due as per Ext.P2. 7. A counter affidavit is filed wherein the total amount due from the petitioner is shown as follows. Head of account Amount in Rs. Principal amount 3,00,000.00 Normal interest 2,67,302.68 Default interest 5,33,669.22 Penal interest 78521.77 Miscellaneous expenses 2000 1% RR charges 4449 Suspense amount -7505 Total 11,78,438.00 8. According to the learned counsel for the respondent Board, the petitioner is only entitled to complete abatement of WPC.874/09 : 4 : penal interest which has been given and 70% abatement of the default interest as already indicated. As directed by this court under a memo, the contract itself has been produced. In order to appreciate the contention of the petitioner, it is necessary to refer two Clauses in the contract. They are extracted hereunder. “ 6. The loan shall bear interest at the rate of 18.25% per annum or such other higher rate of interest compounded quarterly as may be fixed by the Mortgage from time to time. The Mortgage is also entitled to deduct 5% of the loan amount towards supervision charge from each loan instalment. 12. If any monthly equated instalment is not remitted on the due dates the loanee is liable to pay a penal interest at the rate 2.5% in addition to the usual rate of 20.75% on such defaulted amount from the due dates till the date of remittance.” 9. It is the contention of the learned counsel for the Board that the normal rate of interest is 18.25% as contained in Clause 6. The entire amount due on the said basis has to be paid as monthly instalments. The monthly instalments are arrived at after providing at the normal rate of 18.25% and dividing it by the number of months. Thereafter, Clause 12 provides for both the penal interest as also default interest. The default interest is WPC.874/09 : 5 : shown as 20.75% on such default amount. He would point out that actually the amount of default interest is made over to the funding agents. I feel that there is force in the contention of the respondent Board that the petitioner is entitled only to the complete reduction of penal interest and also the default interest which benefit is already given to the petitioner when Ext.P5 is passed. In fact, learned Government Pleader also supports the said view. If that is so, there can be no merit in the contention of the petitioner. Hence, writ petition fails and it is dismissed. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE